Front Page Titles (by Subject) APPENDIX. - Commentaries on the Laws of England in Four Books, vol. 2
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APPENDIX. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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Record of an Indictment and Conviction of Murder, at the Assizes.
Warwickshire, to wit. } Be it remembered,Session of oyer and terminer.that at the general session of the lord the king of oyer and terminer holden at Warwick in and for the said county of Warwick, on Friday, the twelfth day of March, in the second year of the reign of the lord George the Third, now king of Great Britain, before Sir Michael Foster, knight, one of the justices of the said lord the king assigned to hold pleas before the king himself, Sir Edward Clive, knight, one of the justices of the said lord the king, of his court of Common Bench, and others their fellows, justices of the said lord the king, assigned by letters-patent of the said lord the king,Commission ofunder his great seal of Great Britain, made to them the aforesaid justices and others, and any two or more of them, (whereof one of them the said Sir Michael Foster and Sir Edward Clive, the said lord the king would have to be one,) to inquire (by the oath of good and lawful men of the county aforesaid, by whom the truth of the matter might be the better known, and by other ways, methods, and means, whereby they could or might the better know, as well within liberties as without) more fully the truth of all treasons, misprisions of treasons, insurrections, rebellions, counterfeitings, clippings, washings, false comings, and other falsities of the moneys of Great Britain, and of other kingdoms or dominions whatsoever; and of all murders, felonies, manslaughters, killings, burglaries, rapes of women, unlawful meetings and conventicles, unlawful uttering of words, unlawful assemblies, misprisions, confederacies, false allegations, trespasses, riots, routs, retentions, escapes, contempts, falsities, negligences, concealments, maintenances, oppressions, champerties, deceits, and all other misdeeds, offences, and injuries whatsoever, and also the accessories of the same, within the county aforesaid, as well within liberties as without, by whomsoever and howsoever done, had, perpetrated, and committed, and by whom, to whom, when, how, and in what manner; and of all other articles and circumstances in the said letters-patent of the said lord the king specified; the premises and every or any of them howsoever concerning;oyer and terminer,and for this time to hear and determine the said treasons and other the premises, according to the law and custom of the realm of England; and also keepers of the peace and justices of the said lord the king,and of the peaceassigned to hear and determine divers felonies, trespasses, and other misdemeanours committed within the county aforesaid, by the oath of Sir James Thomson, baronet, Charles Roper, Henry Dawes, Peter Wilson,Grand jury. Samuel Rogers, John Dawson, James Phillips, John Mayo, Richard Savage, William Bell, James Morris, Laurence Hall, and Charles Carter, esquires, good and lawful men of the county aforesaid, then and there impanelled, sworn, and charged to inquire for the said lord the king and for the body of the said county, it is presented: That Peter Hunt,Indictment. late of the parish of Lighthorne, in the said county, gentleman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the fifth day of March in the said second year of the reign of the said lord the king, at the parish of Lighthorne aforesaid, with force and arms, in and upon one Samuel Collins, in the peace of God and of the said lord the king then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said Peter Hunt, with a certain drawn sword, made of iron and steel, of the value of five shillings, which he the said Peter Hunt in his right hand then and there had and held, him the said Samuel Collins, in and upon the left side of the belly of him the said Samuel Collins then and there feloniously, wilfully, and of his malice aforethought, did strike, thrust, stab, and penetrate; giving unto the said Samuel Collins, then and there, with the sword drawn as aforesaid, in and upon the left side of the belly of him the said Samuel Collins, one mortal wound, of the breadth of one inch and the depth of nine inches; of which said mortal wound he the said Samuel Collins, at the parish of Lighthorne aforesaid, in the said county of Warwick, from the said fifth day of March in the year aforesaid, until the seventh day of the same month in the same year, did languish, and languishing did live; on which said seventh day of March in the year aforesaid, the said Samuel Collins, at the parish of Lighthorne aforesaid, in the county aforesaid, of the said mortal wound did die: and so the jurors aforesaid, upon their oath aforesaid, do say that the said Peter Hunt him the said Samuel Collins, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace of the said lord the now king, his crown, and dignity. Whereupon the sheriff of the county aforesaid is commanded that he omit not for any liberty in his bailiwick,Indictmentbut that he take the said Peter Hunt, if he may be found in his bailiwick, and him safely keep, to answer to the felony and murder whereof he stands indicted. Which said indictment the said justices of the lord the king above named, afterwards, to wit, at the delivery of the gaol of the said lord the king, holden at Warwick in and for the county aforesaid,Session of gaol-delivery. on Friday, the sixth day of August, in the said second year of the reign of the said lord the king, before the right honourable William lord Mansfield, chief justice of the said lord the king, assigned to hold pleas before the king himself, Sir Sidney Stafford Smythe, knight, one of the barons of the exchequer of the said lord the king, and others their fellows, justices of the said lord the king, assigned to deliver his said gaol of the county aforesaid of the prisoners therein being, by their proper hands do deliver here in court of record in form of the law to be determined. And afterwards,Arraignment. to wit, at the same delivery of the gaol of the said lord the king of his county aforesaid, on the said Friday, the sixth day of August, in the said second year of the reign of the said lord the king, before the said justices of the lord the king last above named and others their fellows aforesaid, here cometh the said Peter Hunt, under the custody of William Browne, esquire, sheriff of the county aforesaid, (in whose custody in the gaol of the county aforesaid, for the cause aforesaid, he had been before committed,) being brought to the bar here in his proper person by the said sheriff, to whom he is here also committed. And forthwith being demanded concerning the premises in the said indictment above specified and charged upon him,Plea: not guilty. Issue. how he will acquit himself thereof, he saith that he is not guilty thereof; and thereof for good and evil he puts himself upon the country. And John Blencowe, esquire, clerk of the assizes for the county aforesaid, who prosecutes for the said lord the king in this behalf, doth the like. Therefore let a jury thereupon here immediately come before the said justices of the lord the king last above mentioned, and others their fellows aforesaid,Venireof free and lawful men of the neighbourhood of the said parish of Lighthorne, in the county of Warwick aforesaid, by whom the truth of the matter may be the better known, and who are not of kin to the said Peter Hunt, to recognise upon their oath whether the said Peter Hunt be guilty of the felony and murder in the indictment aforesaid above specified, or not guilty: because as well the said John Blencowe, who prosecutes for the said lord the king in this behalf, as the said Peter Hunt, have put themselves upon the said jury. And the jurors of the said jury by the said sheriff for this purpose impanelled and returned, to wit, David Williams, John Smith, Thomas Horne, Charles Nokes, Richard May, Walter Duke, Matthew Lion, James White, William Bates, Oliver Green, Bartholomew Nash, and Henry Long, being called, come; who, being elected, tried, and sworn to speak the truth of and concerning the premises, upon their oath say,Verdict: guilty of murder.that the said Peter Hunt is guilty of the felony and murder aforesaid, on him above charged in the form aforesaid, as by the indictment aforesaid is above supposed against him; and that the said Peter Hunt at the time of committing the said felony and murder, or at any time since to this time, had not nor hath any goods or chattels, lands or tenements, in the said county of Warwick, or elsewhere, to the knowledge of the said jurors.1 And upon this it is forthwith demanded of the said Peter Hunt, if he hath or knoweth any thing to say wherefore the said justices here ought not upon the premises and verdict aforesaid to proceed to judgment and execution against him: who nothing further saith, unless as he before had said. Whereupon, all and singular the premises being seen,Judgment of death,and by the said justices here fully understood, it is considered by the court here, that the said Peter Hunt be taken to the gaol of the said lord the king of the said county of Warwick from whence he came,and dissectionand from thence to the place of execution on Monday now next ensuing, being the ninth day of this instant August, and there be hanged by the neck until he be dead; and that afterwards his body be dissected and anatomized.
Conviction of Manslaughter.
[Editor: missing word] upon their oath say,Verdict: not guilty of murder, guilty of manslaughter.that the said Peter Hunt is not guilty of the murder aforesaid, above charged upon him; but that the said Peter Hunt is guilty of the felonious slaying of the aforesaid Samuel Collins; and that he had not nor hath any goods or chattels, lands or tenements, at the time of the felony and manslaughter aforesaid, or ever afterwards to this time, to the knowledge of the said jurors.2 And immediately it is demanded of the said Peter Hunt if he hath or knoweth any thing to say wherefore the said justices here ought not upon the premises and verdict aforesaid to proceed to judgment and execution against him: who saith that he is a clerk,Clergy prayed. and prayeth the benefit of clergy to be allowed him in this behalf. Whereupon, all and singular the premises being seen, and by the said justices here fully understood,Judgment to be burned in the hand, and delivered.it is considered by the court here that the said Peter Hunt be burned in his left hand and delivered. And immediately he is burned in his left hand, and is delivered, according to the form of the statute.3
Entry of a Trial instanter in the Court of King’s Bench, upon a Collateral Issue; and Rule of Court for Execution thereon.
Michaelmas Term, in the Sixth Year of the Reign of King George the Third.
Kent; The King against Thomas Rogers. } The prisoner at the bar being brought into this court in custody of the sheriff of the county of Sussex, by virtue of his majesty’s writ of habeas corpus,Habeas corpus. Record of attainder read,it is ordered that the said writ and the return thereto be filed. And it appearing by a certain record of attainder, which hath been removed into this court by his majesty’s writ of certiorari, that the prisoner at the bar stands attainted, by the name of Thomas Rogers, of felony for a robbery on the highway,for felony and robbery. Prisoner asked what he can say in bar of execution. and the said prisoner at the bar having heard the record of the said attainder now read to him, is now asked by the court here what he hath to say for himself why the court here should not proceed to award execution against him upon the said attainder.Plea: not the same person.He for plea saith that he is not the same Thomas Rogers in the said record of attainder named, and against whom judgment was pronounced; and this he is ready to verify and prove, &c. To which said plea the honourable Charles Yorke,Replication,esquire, attorney-general of our present sovereign lord the king, who for our said lord the king in this behalf prosecuteth, being now present here in court, and having heard what the said prisoner at the bar hath now alleged, for our said lord the king by way of reply saith,averring that he is. that the said prisoner now here at the bar is the same Thomas Rogers in the said record of attainder named, and against whom judgment was pronounced as aforesaid; and this he prayeth may be inquired into by the country;Issue joined. and the said prisoner at the bar doth the like: Therefore let a jury in this behalf immediately come here into court, by whom the truth of the matter will be the better known,Venire awarded instanter.and who have no affinity to the said prisoner, to try upon their oath whether the said prisoner at the bar be the same Thomas Rogers in the said record of attainder named, and against whom judgment was so pronounced as aforesaid, or not: because as well the said Charles Yorke, esquire, attorney-general of our said lord the king, who for our said lord the king in this behalf prosecutes, as the said prisoner at the bar, have put themselves in this behalf upon the said jury. And immediately thereupon the said jury come here into court;Jury sworn. and, being elected, tried, and sworn to speak the truth touching and concerning the premises aforesaid, and having heard the said record read to them, do say upon their oath that the said prisoner at the bar is the same Thomas Rogers in the said record of attainder named,Verdict: that he is the same. and against whom judgment was so pronounced as aforesaid, in manner and form as the said attorney-general hath by his said replication to the said plea of the said prisoner now here at the bar alleged. And hereupon the said attorney-general on behalf of our said lord the king now prayeth, that the court here would proceed to award execution against him the said Thomas Rogers upon the said attainder.Award of execution.Whereupon, all and singular the premises being now seen and fully understood by the court here, it is ordered by the court here that execution be done upon the said prisoner at the bar for the said felony in pursuance of the said judgment, according to due form of law: And it is lastly ordered that he the said Thomas Rogers, the prisoner at the bar, be now committed to the custody of the sheriff of the county of Kent (now also present here in court) for the purpose aforesaid; and that the said sheriff of Kent do execution upon the said defendant the prisoner at the bar for the said felony, in pursuance of the said judgment, according to due form of law. On the motion of Mr. Attorney-General.
By the Court.
Warrant of Execution on Judgment of Death, at the General Gaol-Delivery in London and Middlesex.
London and Middlesex. } To the sheriffs of the city of London; and to the sheriff of the county of Middlesex; and to the keeper of his majesty’s gaol of Newgate.
Whereas at the session of gaol-delivery of Newgate, for the city of London and county of Middlesex, holden at Justice Hall in the Old Bailey, on the nineteenth day of October last, Patrick Mahony, Roger Jones, Charles King, and Mary Smith, received sentence of death for the respective offences in their several indictments mentioned: Now it is hereby ordered that execution of the said sentence be made and done upon them the said Patrick Mahony and Roger Jones, on Wednesday the ninth day of this instant month of November, at the usual place of execution. And it is his majesty’s command that execution of the said sentence upon them the said Charles King and Mary Smith be respited, until his majesty’s pleasure touching them be further known.
Given under my hand and seal this fourth day of November, one thousand seven hundred and sixty-eight.
James Eyre, Recorder, (l.s.)
Writ of Execution upon a Judgment of Murder, before the King in Parliament.
George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriffs of London and sheriff of Middlesex, greeting. Whereas Lawrence earl Ferrers, viscount Tamworth, hath been indicted of felony and murder by him done and committed, which said indictment hath been certified before us in our present parliament; and the said Lawrence earl Ferrers, viscount Tamworth, hath been thereupon arraigned, and upon such arraignment hath pleaded not guilty; and the said Lawrence earl Ferrers, viscount Tamworth, hath before us in our said parliament been tried, and in due form of law convicted thereof; and whereas judgment hath been given in our said parliament that the said Lawrence earl Ferrers, viscount Tamworth, shall be hanged by the neck till he is dead, and that his body be dissected and anatomized, the execution of which judgment yet remaineth to be done: We require, and by these presents strictly command you, that upon Monday, the fifth day of May instant, between the hours of nine in the morning and one in the afternoon of the same day, him the said Lawrence earl Ferrers, viscount Tamworth, without the gate of our tower of London (to you then and there to be delivered, as by another writ to the lieutenant of our tower of London or to his deputy directed we have commanded) into your custody you then and there receive; and him, in your custody so being, you forthwith convey to the accustomed place of execution at Tyburn; and that you do cause execution to be done upon the said Lawrence earl Ferrers, viscount Tamworth, in your custody so being, in all things according to the said judgment. And this you are by no means to omit, at your peril. Witness ourself at Westminster, the second day of May, in the thirty-third year of our reign.
Yorke and Yorke.
AN ANALYSIS OF BLACKSTONE’S COMMENTARIES ON The Laws of England.
The figures at the end of each Question refer to the pages of Blackstone (and those of all the editions are alike) where its Answer may be found.
Of the Nature of Laws in General.
1.What is law, in its most general and comprehensive sense? 38.
2. What is law, in its more confined sense, and that in which it is the present commentator’s business to consider it? 39.
3. What is the law of nature? 39.
4. To what one precept may the law of nature be reduced? 41.
5. Has God revealed any portions of this law to us? 42.
6. Upon what two foundations depend all human laws? 42.
7. As the whole race of mankind form separate states, is there not a third kind of law? 43.
8. What is that law called by which particular nations are governed? 44.
9. How does the commentator define that law? 44.
10. What three forms of government are there? 49.
11. What peculiar quality does each of these forms of government possess; and what effect have these several qualities upon the laws of their respective governments? 49, 50.
12. What is the nature of the British form of government? 50, 51.
13. With whom lies the right to make laws in every government? 52.
14. Of what four parts may every law be said to consist? 53, 54.
15. Wherein consists the difference between those things prohibited by the law which are mala in se, and those which are mala prohibita? 54, 55, 57, 58.
16. What five helps are there to the interpretation of laws? 59.
17. How is equity defined by Grotius? 62.
Of the Laws of England.
1.Into what two kinds may the municipal law of England be divided? 63.
2. What does the first of these kinds of law include? 63.
3. Where is it to be found? 63, 64.
4. Of what degree of antiquity must its maxims and customs be, to entitle them to validity? 67.
5. Into what three kinds is it distinguishable? 67.
6. How are its customs or maxims to be known; and by whom is their validity to be determined? 69.
7. What is the doctrine of the law as to following precedents? 70.
8. What three things do the rules relating to particular customs regard? 75.
9. Wherein do the customs of London differ from all others in point of trial? 76.
10. What are the seven necessary requisites to make a custom good? 77, 78.
11. To what, however, must all special customs submit? 79.
12. What are understood by those peculiar laws which, by custom, are adopted and used only in certain peculiar courts and jurisdictions? 79.
13. What is understood by each of these laws, absolutely taken? 80, 82.
14. What are the four species of courts in which these laws are permitted to be used? 83.
15. Under what superintendency are all these courts? 84.
16. To whom does an appeal from them lie, in the last resort? 84.
17. Of what does the second kind of municipal law consist? 85.
18. Into what four kinds is it distinguishable? 85, 86.
19. What two connections has it with the first kind of municipal law? 86.
20. What are the ten principal rules to be observed with regard to the construction of the second kind of municipal law? 87-91.
21. For what purpose are our courts of equity established; and in what matters only are they conversant? 92.
Of the Courts subject to the Laws of England.
1.What does the kingdom of England, by the common law, include? 93.
2. How is Wales governed; and in what particulars does it differ from the kingdom of England? 93-95.
3. How is Scotland governed; and what four observations are to be made upon the articles and act of union between England and Scotland? 95-98.
4. How is the town of Berwick-upon-Tweed governed; what writs run there; and by whom may all local matters arising there be tried? 99.
5. How is Ireland governed? 100-104.
6. How are the Isles of Wight, Portland, Thanet, &c. governed? 105.
7. How is the Isle of Man governed? 105, 106.
8. How are the Isles of Jersey, Guernsey, Sark, Alderney, and their appendages governed? 106.
9. How are our Plantations abroad governed? 107, 108.
10. Of what three sorts are our Colonies, with respect to their internal polity; what is the form of government in most of them; and what is declared, as to the laws of plantations, by statute 7 & 8 W. III. c. 22, and as to the subordination of the American plantations, by statute 6 Geo. III. c. 12? 108, 109.
11. But what was the king empowered to do by statute 22 Geo. III. c. 46; and what does he acknowledge by the first article of the definitive treaty of peace and friendship between his Britannic Majesty and the United States of America? 109.
12. How are any foreign dominions which may belong to the king by hereditary descent, by purchase, or other acquisition, governed? 109, 110.
13. What part of the sea is subject to the common law, and what part to the jurisdiction of our courts of admiralty? 110.
14. To what two divisions is the territory of England liable? 111.
15. How is the first division subdivided? 111.
16. What is a parish; how were the boundaries of parishes originally ascertained; how is the frequent intermixture of parishes one with another to be accounted for; how are some lands extra-parochial; to whom are their tithes payable; yet what does the statute 17 Geo. II. c. 37 enact as to extra-parochial waste and marsh lands, when improved and drained? 111-113.
17. How is the second division subdivided? 114.
18. What was a tithing? 114.
19. What is a town now, what a city, and what a borough? 114, 115.
20. What is a hundred, what a wapentake, what a county or shire, what a lathe, what a rape, and what a trithing? 115, 116.
21. What is a county-palatine; what three counties are now of this nature; whence is the origin of their privileges; how were the powers of their owners abridged in 27 Hen. VIII.; and who are those owners now? 116-119.
22. What is the Isle of Ely? 119.
23. What is a county corporate? 120.
OF THE RIGHTS OF PERSONS.
Of the Absolute Rights of Individuals.
1.What are the two primary and principal objects of the laws of England? 122.
2. How is the first of these objects subdivided? 122.
3. How is the second of these objects subdivided? 122.
4. Of what two sorts are those rights of persons which are commanded to be observed by the municipal law? 123.
5. How are persons divided by the law? 123.
6. Of what two sorts are the rights of persons, considered in their first or natural capacity? 123.
7. What does the law say as to the absolute duties of man? 124.
8. What is political or civil liberty? 125.
9. How is political or civil liberty distinguished from natural liberty? 125.
10. How have the absolute rights of Englishmen been asserted in parliament? 127, 128.
11. To what three principal or primary articles may these rights be reduced? 129.
12. In what does the first consist? 129.
13. How is an infant, in ventre sa mere, considered by the law? 130.
14. What does the law mean by duress perminas? 131.
15. What is the distinction between a civil and a natural death? 132.
16. What does magna carta say as to the personal security of a “liber homo;” and what is enacted to the same effect by statutes 5 Edw. III. c. 9, and 28 Edw. III. c. 3? 133, 134.
17. In what does the second absolute right of Englishmen consist? 134.
18. What is a writ of habeas corpus, and when may it be sued out? 135.
19. What does the law mean by duress of imprisonment? 136.
20. What is necessary to make an imprisonment lawful; and when is the gaoler not bound to detain the prisoner? 137.
21. Can an Englishman be restrained from leaving the kingdom? 137.
22. Can he be compelled to leave it? 137.
23. In what does the third absolute right of Englishmen consist? 138.
24. In case it would be beneficial to the public that a new road should be made through the grounds of a private person, how will the legislature compel that person to acquiesce in its being made? 139.
25. What taxes only can a subject of England be constrained to pay? 140.
26. What are the five secondary and subordinate absolute rights of Englishmen? 141-143.
27. What does magna carta say as to the right of every Englishman to apply to the courts of justice for redress of injuries; and what is enacted to the same effect by statutes 2 Edw. III. c. 8, and 11 Ric. II. c. 10; and what is declared by statutes 1 W. and M. st. 2, c. 2, and 16 Car. I. c. 10 (upon the dissolution of the starchamber)? 141, 142.
28. To prevent any riot or tumult, under the pretence of petitioning for the redress of grievances, what is provided by statute 13 Car. II. st. 1, c. 5; but, under these regulations, what is declared by the same statute 1 W. and M.? 143.
29. What is declared by the same statute as to the right of every subject to have arms for his defence! 144.
Of the Parliament.
1.What are the two classes of relations of persons? 146.
2. What is the most universal public relation by which men are connected together? 146.
3. What are the two classes of magistrates? 146.
4. Into what two branches is the supreme power divided? 147.
5. Of what antiquity are parliaments? 147-149.
6. What are the manner and time of the parliament’s assembling? 150-153.
7. What do the statutes 16 Car. II. c. 1 and 6 W. and M. c. 2 enact as to the frequency of holding parliaments? 153.
8. What are the constituent parts of a parliament? 153.
9. What voice in making laws has each part? 154, 155.
10. Of whom do the spiritual lords consist? 155.
11. Of whom do the temporal lords consist? 157.
12. Do the lords spiritual and the lords temporal form two distinct estates? 156.
13. Of whom do the commons consist? 158.
14. Of what authority is the power and jurisdiction of parliament? 160-162.
15. What are the disqualifications of a member of parliament? 162.
16. From what one maxim has the whole of the law and custom of parliament its original? 163.
17. Of what extent are the privileges of parliament? 164.
18. What are some of the more notorious privileges of either house of parliament? 164-167.
19. What are the peculiar privileges of the house of lords? 167, 168.
20. What are the peculiar privileges of the house of commons? 169, 170.
21. What are the qualifications of electors of knights of the shire? 172, 173.
22. What are the qualifications of electors of citizens and burgesses? 174, 175.
23. What are the qualifications of persons to be elected members of the house of commons? 175-176.
24. What is the method of proceeding in regard to elections, both of knights of the shire and of members for cities and boroughs? 177, 178, 180.
25. What measures are taken at electio is to prevent all undue influence upon the electors; and what if any revenue officer intermeddle in elections? 178, 179.
26. What is enacted to prevent bribery and corruption at elections? 179.
27. What if the returning officer do not return such members only as are duly elected? 180.
28. What is the method of making laws? 181-185.
29. In what two ways may the royal assent to a bill be given? 184, 185.
30. Whom hath an act of parliament power to bind; how only can it be altered, amended, dispensed with, suspended, or repealed; and what is declared by the statute 1 W. and M. st. 2, c. 2 as to regal authority over laws? 185, 186.
31. What is an adjournment of the houses of parliament? 186.
32. What is a prorogation of the houses of parliament? 187.
33. What is a dissolution of the houses of parliament? 187.
34. In what three ways may this dissolution be effected? 187-189.
35. But, the calling a new parliament immediately on the inauguration of a successor to the crown being found inconvenient, and dangers being apprehended from having no parliament in being in cases of a disputed succession, what was enacted by statutes 7 & 8 W. III. c. 15, and 6 Anne, c. 7? 188.
36. What is the extent of time that the same parliament is allowed to sit by the statute 1 Geo. I. st. 2, c. 38? 189.
Of the King and his Title.
1.In whom is the supreme executive power of this kingdom lodged? 190.
2. Under what six distinct views may the royal person be considered? 190.
3. What is the grand fundamental maxim upon which the jus coronæ, or right of succession to the throne of these kingdoms depends? 191.
4. Does the descent of the crown correspond with the feodal path of descents chalked out by the common law in the succession to landed estates? 193, 194.
5. Does the doctrine of hereditary right imply an indefeasible right to the throne? 195.
6. The crown being capable of being limited or transferred, does it not lose its descendible quality? 196.
7. What kings have been successively constituted the common stocks or ancestors of the English descent? 197-217.
8. What did the convention of estates, or representative body of the nation, declare at the revolution? 211.
9. And how did they settle the succession to the throne? 214.
10. On the impending failure of the Protestant line of Charles I., (whereby the throne might again have become vacant,) to whom did the king and parliament extend the settlement of the crown? 216.
Of the King’s Royal Family.
1.What is the first and most considerable branch of the king’s royal family regarded, by the laws of England? 218.
2. What are the three kinds of queens? 218.
3. What are the powers, prerogatives, rights, dignities, and duties of the first kind of queen? 218, 222.
4. What are the prerogatives of the second kind of queen above other women? 218, 219.
5. In what does her revenue consist? 219-222.
6. What are the privileges of the third kind of queen? 223.
7. How are the Prince of Wales or heir apparent to the crown, and his royal consort, and the princess royal or eldest daughter of the king, regarded by the laws? 223.
8. How are the rest of the royal family regarded by the laws? 224-226.
9. Does the law make any distinction between the king’s children and his grandchildren? 225.
10. What is enacted by statute 12 Geo. III. c. 11 as to the capability of the descendants of the body of king Geo. II. to contract matrimony? 226.
Of the Councils belonging to the King.
1.What are the four councils which the law has assigned to advise with the king? 227-230.
2. By whom are privy counsellors created? 230.
3. What are the qualifications of a privy counsellor? 230.
4. What are the duties of a privy counsellor? 230, 231.
5. What is the power of the privy council? 231, 232.
6. What are the privileges of a privy counsellor? 232.
7. How may the privy council be dissolved, and what is enacted as to its dissolution by statute 6 Anne, c. 7? 232.
Of the King’s Duties.
1.What are the principal duties of the king; and what is expressly declared on this subject by statute 12 & 13 W. III. c. 2? 233, 234, 236.
2. By what contract is he bound to execute these duties? 235.
3. Upon what principle is the duty of protection impliedly as much incumbent upon the sovereign before coronation as after? 236.
4. With respect to the king’s duty to maintain the established religion, what is done by the act of union, 5 Anne, c. 8? 236.
Of the King’s Prerogative.
1.What is usually understood by the word prerogative? 239.
2. What are the two species of prerogative, and how are they defined? 239, 240.
3. Into what three kinds may the first species of prerogative be divided? 240.
4. What is the first attribute the law ascribes to the king in which his dignity consists? 241.
5. What is the difference between a king and an emperor? 242.
6. What remedy have the subjects of England in case the crown should invade their rights by private injury? 243.
7. What remedy have they in case of such in vasion by public oppression? 244.
8. Should any king endeavour to subvert the constitution by breaking the original contract between him and the people, violate the fundamental laws, and withdraw himself out of the kingdom, to what would this conjunction of circumstances amount? 245.
9. What is the second legal attribute in which the king’s dignity consists? 245.
10. What is the meaning of that attribute? 246.
11. What else does the law determine in pursuance of this principle? 247, 248.
12. What is the third legal attribute of the king’s dignity? 249.
13. In what does the king’s authority consist? 250.
14. How has Locke defined prerogative? 252.
15. What are the king’s five principal rights or prerogatives, as representative of the people, with regard to foreign concerns? 253, 257-259.
16. How are the rights, powers, duties and privileges of ambassadors determined? 253.
17. What are some of these privileges? 253, 254, 256.
18. When are letters of marque and reprisal granted? 258.
19. What does magna carta declars respecting foreign merchants? 260.
20. What are the king’s six rights or prerogatives, and in what six characters is he considered in domestic affairs? 261, 262, 266, 271, 273, 279.
21. What five powers has the king, considered as generalissimo within the kingdom? 262-265.
22. What, by statute 4 Hen. IV. c. 20, is the penalty for landing elsewhere than at the “great ports” of the sea? 264.
23. Who, by statute 8 Eliz. c. 13, are empowered to set up beacons or sea-marks; and what is the penalty for taking down any known sea-mark? 265.
24. If the king by writ of ne exeat regnum prohibit a man from going abroad, or if the king send him a writ when abroad commanding his return, what is the penalty of disobedience in either case? 266.
25. To whom have our kings delegated their whole judicial power; and what is enacted, in order to maintain the dignity and independence of the judges in the superior courts, by statutes 13 W. III. c. 2, and 1 Geo. III. c. 23? 267, 268.
26. Why would it be a still higher absurdity if the king sat in judgment in criminal prosecutions? 268.
27. Whence arises the king’s prerogative of pardoning offences? 268, 269.
28. What is the legal ubiquity of the king, and what follows thence? 270.
29. What force have the king’s proclamations? 270.
30. Under what three articles will the king’s prerogative, so far as it relates to domestic commerce, fall? 274, 276.
31. What three rights arise to the king as the head and supreme governor of the national church? 279, 280.
32. Of what does the convocation, or ecclesiastical synod, in England, consist? 279, 280.
Of the King’s Revenue.
1.Of what two kinds is the king’s revenue? 281.
2. Of what two natures is the first of these kinds of revenue? 281.
3. What revenue does the king derive from his bishoprics? 282.
4. To what is the king entitled of every bishop? 283.
5. To what tithes is the king entitled? 283, 284.
6. To what portion of all the spiritual preferments in the kingdom is the king entitled? 284.
7. What is meant by Queen Anne’s bounty? 286.
8. Of what lands does the crown receive the rents and profits? 286.
9. How have the grants and leases of these lands been regulated by act of parliament? 286, 287.
10. Do any advantages arise to the king from military tenures? 287.
11. What was the prerogative of purveyance and pre-emption; and for what branch of revenue did what king exchange it? 287, 288.
12. What revenue did and does the king derive from wine-licenses? 288.
13. Do any profits arise to the king from his forests? 289.
14. What revenue does the king derive from his ordinary courts of justice; and what is enacted by statute 1 Anne, st. 1, c. 7 as to all future grants of their profits? 289, 290.
15. When is the king entitled to, and what are called, royal fish? 290.
16. What constitutes the wreck which belongs to the king? 290-292.
17. What are things jetsam, flotsam, and ligan, and to whom do they belong? 292, 293.
18. What is enacted by statute 27 Edw. III. c. 13 if any ship be lost on the shore and the goods come to land; what, by the common law, if any person but the sheriff take such goods; and what is enacted to assist ships in distress by statutes 12 Anne, st. 2, c. 18, and 4 Geo. I. c. 12? 293.
19. What, if any person secrete any of such goods; and what is the offence of doing any act whereby the ship is lost or destroyed? 293, 294.
20. What is enacted by the statute 26 Geo. II. c. 19 as to plundering any vessel in distress or wrecked, and to pilfering any goods cast ashore? 294.
21. What are royal mines to which the king is entitled? 294, 295.
22. What constitutes the treasure-trove which belongs to the king? 295.
23. What are waifs, and when do they belong to the king? 296, 297.
24. What are estrays, and what must be done in order to vest an absolute property in them in the king? 297, 298.
25. What is one general reason why royal fish, shipwrecks, treasure-trove, waifs, and estrays should belong to the king? 298, 299.
26. What are bona confiscata, or foris-facta, and why are they vested by law in the king? 299.
27. What is a deodand, and for what purpose is it forfeited to the king? 300-302.
28. Is the law of deodands different in the case of an adult and that of a child; and why is it so? 300.
29. By whom is the deodand presented? 301.
30. Are wrecks, treasure-trove, royal fish, mines, waifs, estrays, deodands, and forfeitures now actually in the possession of the king? 302.
31. When does an escheat of lands to the king happen? 302.
32. What is an idiot or natural fool; and why has the king the custody of him, and of his lands as a branch of his ordinary revenue? 302-304.
33. By whom must the writ de idiota inquirendo be tried; and in what event may the king grant the profits of his lands and the custody of his person? 303.
34. What is a lunatic or non compos mentis; and how is it declared by the statute 17 Edw. II. c. 10 that the king shall have the guardianship of such a one? 304.
35. What does the statute for regulating private mad-houses, 26 Geo. III. c. 91, enact? 304.
36. What is the method of proving a person non compos? 305.
37. Who is generally appointed committee of the lunatic’s person, and who of his estate? 305.
38. What has chiefly occasioned the necessity of granting to the king his extraordinary or second kind of revenue? 306.
39. In what does this revenue consist, and by whom is it granted? 307.
40. Of what two natures are the taxes which are raised upon the subject to feed this revenue? 308.
41. What are the two usual taxes of the first nature? 308.
42. What were tenths and fifteenths? 308, 309.
43. What were scutages? 309, 310.
44. What were hydages and talliages? 310.
45. What were the subsidies which succeeded these last? 310-312.
46. How did ecclesiastical subsidies differ from lay ones; and what recompense was given to the beneficed clergy when they were taxed equally with the laity? 311.
47. What is the present land tax? 312, 313.
48. What is the malt tax? 313.
49. What are the eight taxes of the second nature? 313, 318, 321, 323-326.
50. What are the customs; and what were said to be the two considerations upon which this revenue (or the more antient part of it, which arose only from exports) was invested in the king? 313-318.
51. How came wool, skins, and leather to be styled the staple commodities of the kingdom? 314.
52. Why cannot particularly the first of these articles be said in its original sense to be now the staple commodity of the kingdom? 314.
53. What was the hereditary duty belonging to the crown called the prisage or butlerage of wines; and for what was it exchanged? 315.
54. What were subsidies, tonnage, and poundage, and what became of the last two duties? 315, 316.
55. What is called the alien’s duty? 316.
56. What is the excise duty, and wherein does it differ from the customs? 318-320.
57. What is the salt duty? 321.
58. What is the duty for the carriage of letters? 321.
59. What are the stamp duties? 323.
60. What is the duty upon houses and windows? 324, 325.
61. What was hearth-money? 324.
62. What is the duty for every male servant? 325.
63. What is the hackney-coach and chair duty? 325.
64. What is the duty on offices and pensions? 326.
65. How is the revenue first and principally appropriated? 326.
66. What is the nature of the national debt? 326, 327.
67. Into what three principal funds are the produces of the several taxes consolidated? 329.
68. How are the surpluses of these funds disposed of? 330.
69. But for what purpose does the surplus of the aggregate fund first stand mortgaged by parliament? 331.
70. What is the amount of his present majesty’s civil list? 331.
71. What are the expenses defrayed by the civil list? 332.
72. Has the power of the crown, upon the whole, been weakened or strengthened by any transactions in the last century? 334-337.
Of Subordinate Magistrates.
1.What are the six classes of subordinate magistrates of the most general use and authority? 339.
2. What is the sheriff, and by whom is he chosen? 339, 340.
3. In what one county does the office of sheriff still continue hereditary; and in what one instance is the inheritance of a shrievalty vested in a corporate body by charter? 340.
4. What are pocket sheriffs? 342.
5. What is the duration in office of a sheriff; how can his office be determined; but what does the statute 1 Anne, st. 1, c. 8 enact as to the duration in office of all officers appointed by the king; and what is enacted as to the man who has served the office of sheriff by statute 1 Ric. II. c. 11? 342, 343.
6. What are the sheriff’s four powers and duties? 343.
7. What does he do, in his judicial capacity? 343.
8. What are his rank and duty as keeper of the king’s peace? 343.
9. What is he bound to do in his ministerial capacity? 344.
10. What is his business as the king’s bailiff? 344.
11. What are the sheriff’s inferior officers? 345.
12. What are the regulations of an undersheriff? 345.
13. What two classes of bailiffs are there; and what are the duties of each class? 345.
14. What is the business of gaolers? 346.
15. What is the coroner; how many coroners are there for each county; and by whom are they chosen? 346.
16. What is the qualification for a coroner; and how has the office been abused? 347, 348.
17. What is the duration of the office? 348.
18. What are the judicial office and power of a coroner? 348.
19. What is the ministerial office of a coroner? 349.
20. What is the custos rotulorum? 349.
21. Who are custodes or conservatores pacis, virtute officii? 349, 350.
22. What is the origin of the modern justices of the peace? 351.
23. How are they appointed? 351.
24. Who are called justices of the quorum, and why are they so called? 351.
25. What are the number and qualifications of these justices? 352, 353.
26. By what five causes is the office determinable? 353.
27. What are the power, office, and duty of a justice of the peace? 353, 354.
28. What two sorts of constables are there? 355.
29. By whom are they appointed? 355, 356.
30. What are the three principal duties of all constables? 356, 357.
31. By whom are surveyors of the highways constituted? 357.
32. To what four duties has the statute now reduced their office? 358.
33. What is the origin of overseers of the poor? 359.
34. By whom are they appointed, and what are their qualifications? 360.
35. What are their two principal offices and duties? 360.
36. What are the different ways in which such a settlement in a parish as will entitle a person to relief from the overseers of the poor may be gained? 363.
37. In what case may a person be removed to his own parish, and by whom? 364.
38. What is the great cause of the inadequacy of our poor-laws? 365.
Of the People, whether Aliens, Denizens, or Natives.
1.What is the first and most obvious division of the people? 366.
2. What is allegiance? 366.
3. What was fealty? 367.
4. What was the difference between simple and liege homage? 367.
5. For what reason, with us in England, could only the oath of fealty be taken to inferior lords, and not that of allegiance? 367.
6. What is the present oath of allegiance? 368.
7. What is the oath of supremacy? 368.
8. What is the oath of abjuration? 368.
9. By whom must this oath be taken; and to whom may it be tendered? 368.
10. To whom may the oath of allegiance be tendered? 368.
11. Does the subject owe no allegiance if he have taken no oath? 368, 369.
12. Into what two sorts or species is all allegiance, both express and implied, distinguished by the law? 369.
13. What is the first of these kinds of allegiance? 369.
14. Can this allegiance be put off by any act of the liegeman? 369, 370.
15. What is the second of these kinds of allegiance; and when does it cease to be due? 370.
16. Is it treason for any subject to practise any thing against the crown and dignity of a usurper, who may be king de facto? 370, 371.
17. Is allegiance held to be applicable further than to the political capacity of the king? 371.
18. Do the different rights of natives and aliens correspond with their different degrees of duty? 371.
19. If an alien born purchase lands in England, who is entitled to them? 372.
20. Is the case altered if the property he acquires be personal estate? 372.
21. May an alien trade or work for himself as an artificer in England? 372.
22. May an alien bring an action or make a will? 372.
23. What if he be an alien enemy? 372.
24. In what cases is one born out of the king’s dominions not an alien but a native? 373.
25. What are the children of aliens born in England? 373.
26. What is a denizen? 374.
27. What are his privileges? 374.
28. How can an alien be naturalized? 374.
29. What are the incapacities of a naturalized alien? 374.
30. How may foreign seamen be naturalized? 375.
31. How may foreign Protestants and Jews residing or serving in the American colonies be naturalized? 375.
Of the Clergy.
1.Into how many kinds are the people, whether aliens, denizens, or natives, divisible? 376.
2. What does the word clergy comprehend in law? 376.
3. What are a clergyman’s exemptions and privileges? 376, 377.
4. What are his disabilities? 377.
5. What are the eight ranks and degrees in the frame and constitution of ecclesiastical polity? 377, 382, 383, 384, 394, 395.
6. By whom is an archbishop or bishop elected: and what are the forms of such elections? 377, 379, 380.
7. What are the power and authority of an archbishop? 380.
8. What is called the archbishop’s options? 381.
9. What are the privileges of the Archbishop of Canterbury? 381.
10. What are the power and authority of a bishop? 382.
11. How may archbishoprics and bishoprics become void? 382.
12. What are the offices of dean and chapter? 382.
13. How are ancient and modern deans elected? 382.
14. How is the chapter appointed? 383.
15. How may deaneries and prebends become void? 383.
16. What is the jurisdiction of an archdeacon; and by whom is he appointed? 383.
17. What are rural deans? 384.
18. What is a parson, and to what is he entitled? 384.
19. What is an appropriated parsonage; whence is the origin of appropriations; and whose consents are necessary to make an appropriation? 384, 385.
20. How may an appropriation be severed? 385, 386.
21. What is a vicar, and how is he distinguished from a parson? 388.
22. What four requisites are necessary to a parson or vicar; what is the qualification to be admitted to a benefice by statute 13 & 14 Car. II. c. 4; and what if orders, or a license to preach, be obtained by money or corrupt practices? 388, 389.
23. Upon what three accounts may the bishop refuse to institute a clerk to a parsonage or vicar age? 389.
24. In the case of an action at law, brought by the patron against the bishop for refusing his clerk, what if the cause be of a temporal nature; what if of a spiritual? and what if it be minus sufficiens in literaturâ? 390.
25. What is required of a vicar, upon institution? 390.
26. What is a collation to a benefice? 391.
27. How is the ceremony of induction performed? 391.
28. What is the law as to residence by statute 21 Hen. VIII. c. 12; and what provision is made for rebuilding or repairing parsonage-houses by statute 17 Geo. III. c. 53? 392.
29. By what five means may a parson or vicar cease to be so? 392.
30. Who, by statute 21 Hen. VIII., are entitled to have a dispensation; without which in what case cannot two benefices be held together? 392.
31. What are a commenda retinere and a commenda recipere? 393.
32. What is a curate? 393.
33. What is a perpetual curacy? 394.
34. What are churchwardens? 394.
35. By whom are they appointed, and what are their powers and duties? 394.
36. How are parish clerks regarded by the common law? 395.
37. By whom is the parish clerk appointed? 395.
Of the Civil State.
1.Into what three distinct states may the lay part of his majesty’s subjects be divided? 396.
2. What does the first of these states include? 396.
3. Of what two classes does it consist? 396.
4. What are the five degrees of nobility now in use? 396.
5. What is the origin of the title of duke? 397.
6. What is the origin of the title of marquess? 397.
7. What is the origin of the title of earl? 398.
8. What is the origin of the title of viscount? 398.
9. What is the origin of the title of baron? 398.
10. Is the right of peerage territorial, or personal? 399.
11. How are peers now created; and what are the several advantages of both modes of creation? 400.
12. What are the privileges of peers, exclusive of their capacity as members of parliament and as hereditary counsellors of the crown? 401, 402.
13. In what cases has a peeress a right to be tried by peers? 401.
14. How may a peer lose his nobility? 402.
15. Into what eleven degrees are the commonalty divided? 403-407.
16. By whom was the order of the garter instituted? 403.
17. What is a knight banneret; and in what case is he entitled to rank before the younger sons of viscounts? 403.
18. For what purpose was the title of baronet instituted? and for what reason have all baronets a hand gules in a field argent added to their coat? 403.
19. Why are knights of the bath so called? 404.
20. Whence is the origin of a knight bachelor? 404.
21. Who are esquires? 406.
22. Who are gentlemen? 406.
23. Who are yeomen? 406.
24. What are the rest of the commonalty? 407.
Of the Military and Maritime States.
1.What does the military state include? 408.
2. How do the laws and constitution of this kingdom look upon a soldier? 408.
3. Of what does the military state, by the standing constitutional law, consist? 412.
4. How is the militia of each county raised and officered; and where are they not compellable to march? 412.
5. How are the armies, which are esteemed necessary when the nation is engaged in war, to be looked upon? 413.
6. What is martial law, according to Sir Matthew Hale? 413.
7. If a lieutenant, or other that hath commission of martial authority, doth, in time of peace, execute any man by colour of martial law, what is his crime by magna carta? 413.
8. What does the petition of right moreover enact as to soldiers and martial law? 413.
9. What does one of the articles of the bill of rights say as to standing armies? 413.
10. In what case are standing armies, ipso facto, disbanded at the expiration of every year? 414.
11. What does Baron Montesquieu declare to be necessary to prevent the executive power from being able to oppress by its armies? 414.
12. How are our armies governed? 414, 415.
13. What reform in the mutiny act does the commentator recommend? 415, 416.
14. But in what cases has the humanity of our standing laws put soldiers in a better condition than other subjects? 417.
15. Of what does the maritime state consist? 418.
16. What are called the laws of Oleron? 418.
17. How has the law, from necessity, provided for the supply of the royal navy with seamen? 419.
18. How is it proved that the king has the power of impressing seafaring men for the sea-service? 419, 420.
19. Who are privileged from being impressed at common law? 420.
20. How else has the law provided for the increase of seamen and manning the royal navy? 420.
21. How is the navy governed; wherein does that method of government differ from that of the army; and whence is it most probable the difference arose? 420, 421.
22. What are the privileges conferred on sailors? 421.
Of Master and Servant.
1.What are the three great private economical relations of persons? 422.
2. What is the fourth private economical relation consequent upon the failure of the third by the death of one of the parties? 422.
3. Can slavery subsist in England? 423, 424.
4. Can slavery subsist anywhere consistently with reason and the principles of natural law; and why are the three origins of the right of slavery assigned by Justinian built upon false foundations? 423.
5. What is the first sort of servants acknowledged by the laws of England? 425.
6. If the hiring of such servant be general, for what period does the law construe it to be? 425.
7. Who are compellable by two justices to go out to service in husbandry, or certain specific trades, for the promotion of honest industry? 425.
8. What are the second species of servants called? 426.
9. Who are compellable by two justices to take the children of poor persons as apprentices? 426.
10. What are the third species of servants, and for what term are they hired? 426.
11. How are they regulated? 427.
12. What is the fourth species of servants, being rather in a superior, or ministerial, capacity? 427.
13. What does a person gain by service for a year, or apprenticeship under indentures? 427.
14. What does a person gain by serving seven years as apprentice to a trade? 427.
15. Are apprenticeships requisite for every trade and for trading everywhere? 428.
16. Is an actual apprenticeship to a trade for seven years necessary to entitle a person to exercise that trade? 428.
17. May a master, or master’s wife, correct his apprentice or his servant? 428.
18. What if a servant assault his master or his master’s wife? 428.
19. What may a master do towards others on behalf of his servant? 429.
20. What does the law call maintenance? 429.
21. What may a servant do towards others on behalf of his master? 429, 430.
22. In what case is the master answerable for the act of the servant? 429, 430.
Of Husband and Wife.
1.What is the second private economical relation of persons? 433.
2. In what light does the law consider marriage? 433.
3. When does the law allow the marriage contract to be good and valid? 433.
4. Of what two sorts are the disabilities to contract marriage? 434.
5. How do canonical impediments affect a marriage? 434.
6. What are the disabilities of this nature? 434.
7. What does the statute 32 Hen. VIII. c. 38 declare as to marriages? 435.
8. How do civil disabilities affect a marriage? 435.
9. What is the first of these legal disabilities? 436.
10. What is the second? 436.
11. What is the third? 437.
12. To what penalty is that clergyman liable who marries a couple either without publication of banns or without a license? 437.
13. To what penalty is he liable, by statute 4 & 5 Ph. and M. c. 8, who marries a female under the age of sixteen years without consent of her parents or guardians? 437.
14. What marriages without consent are void by statute 26 Geo. II. c. 33? 437, 438.
15. What is the fourth legal incapacity to contract marriage; and what has the statute 15 Geo. II. c. 30 provided as to this incapacity? 438, 439.
16. How must a marriage be celebrated to make it valid? 439, 440.
17. In what two ways may marriages be dissolved? 440.
18. What are the two kinds of divorce? 440.
19. For what cause must the first kind of divorce be? 440.
20. For what cause must the second kind of divorce be? 440, 441.
21. In case of divorce a mensa et thoro, what does the law allow to the wife? 441.
22. What is the writ de estoveriis habendis? 441.
23. But in what case does the law allow no alimony? 442.
24. What are the legal consequences of marriage? 442.
25. For what debts of the wife is the husband liable? 442, 443.
26. Is there not one case where the wife shall sue and be sued as a feme sole? 443.
27. Is there not one case where a wife, by statute 3 Hen. VII. c. 2, can be evidence against her husband? 443.
28. What is the only deed a wife can execute? 444.
29. What restraint may a husband lay upon his wife in case of gross misbehaviour? 444, 445.
Of Parent and Child.
1.What is the third and most universal private economical relation of persons? 446.
2. Of what two sorts are children? 446.
3. Who is a legitimate child? 446.
4. What are the three legal duties of parents to legitimate children? 446.
5. In what case may the churchwardens and overseers of the parish seize the parent’s rents, goods, and chattels and dispose of them towards the child’s maintenance? 448.
6. In what case shall a second husband be charged to maintain his wife’s child by her first husband? 448.
7. But in what case is a parent not bound to provide a maintenance for his issue? 449.
8. What is the penalty on a parent’s refusing to provide a maintenance for such of his children as the law puts upon him to maintain? 449.
9. What is enacted if a Popish or Jewish parent shall refuse to allow his Protestant child a fitting maintenance? 449.
10. What is the law as to disinheriting children by will? 449, 450.
11. What may a parent do for a child, as its protector, towards others? 450.
12. In what one case does the law interfere between a parent and his child in regard to education? 451.
13. From what is the power of parents over their children derived? 452.
14. What power do our laws give a parent over his child? 452, 453.
15. When does that power cease? 453.
16. Whence do the duties of children to their parents arise? 453.
17. What are those duties? 453, 454.
18. Do these duties cease upon any misbehaviour of the parent? 454.
19. Who is a bastard? 454.
20. Why is our law on this head superior to the Roman? 455.
21. What is a writ de ventre inspiciendo; and by whom and when may it be sued out? 456.
22. If a man dies, and his widow marries again so soon that, by the course of nature, the child of which she shall be delivered might have been begotten by either husband, which shall be the child’s father? 457.
23. In what cases may children born during wedlock be bastards? 457.
24. What is the duty of parents to their bastard children? 458.
25. What is the method in which the English law provides maintenance for bastards? 458.
26. What are the rights of a bastard? 459.
27. What is the principal incapacity of a bastard? 459.
28. How may a bastard be made legitimate? 459.
Of Guardian and Ward.
1.What is the fourth private economical relation of persons? 460.
2. What is the first species of guardian; and who is that guardian? 461.
3. If the father assign no guardian to his daughter under the age of sixteen years, who shall be her guardian? 461.
4. What and who is the second species of guardian? 461.
5. What is the third species of guardian; when does it take place; upon whom does that guardianship devolve till the minor is presumed to have sufficient discretion to choose his own guardian; and at what age does that presumption take place? 461, 462.
6. What is the fourth species of guardian; how may it be appointed; and who may accept the appointment? 462.
7. What are the power and reciprocal duty of a guardian and ward? 462.
8. What is the guardian bound to do when the ward comes of age? 463.
9. Under whose control are guardians? 463.
10. What are the different ages at which male and female are competent to different purposes? 463.
11. On what day is the full age of male and female completed? 463.
12. How can an infant be sued? 464.
13. How can he sue? 464.
14. At what age may an infant be capitally punished? 464.
15. What if an infant neglect to demand his right? 465.
16. What estates may an infant aliene? 465.
17. What legal act may an infant do? 465.
18. How may an infant purchase lands? 466.
19. What deed can an infant make which is not afterwards voidable? 466.
20. How may an infant bind himself by contract? 466.
1.What are bodies politic, bodies corporate, or corporations; and for what purpose are they constituted? 467.
2. What is the first division of corporations? 469.
3. How are these incorporations again divided? 470.
4. Of what two sorts are lay corporations? 470.
5. What is absolutely necessary to the erection of a corporation? 472.
6. In what sort of corporations is the king’s implied consent to be found? 472.
7. What are the two methods by which the king’s consent is given? 473.
8. What is necessary to the very being of a corporation? 475.
9. What are the five powers incident to all corporations? 475, 476.
10. What are those privileges and disabilities that attend aggregate corporations and are not applicable to such as are sole? 476, 477.
11. May either kind of corporation take goods and chattels for the benefit of themselves and their successors? 477.
12. Who have the right to give laws to ecclesiastical and eleemosynary foundations? 477.
13. What acts can aggregate corporations, that have by their constitution a head, do during the vacancy of the headship? 478.
14. In aggregate corporations what determined the act of the whole body; and what is enacted by statute 33 Hen. VIII. c. 27 as to any private statutes made by founders of corporations in derogation of the common law in this particular? 478.
15. How do the statutes of mortmain effect corporations? 479.
16. What is the general duty of corporations? 480.
17. How is this duty enforced? 480.
18. Who is the visitor of ecclesiastical corporations? 480.
19. Who is the visitor of lay corporations? 480.
20. What does the law mean by the distinction of fundatio incipiens and fundatio perficiens; and why is the king the visitor of all lay civil corporations, and the endower the visitor of all lay eleemosynary ones? 481.
21. Where shall the king exercise this his jurisdiction? 481.
22. May there not be another visitor of lay eleemosynary corporations than the founder? 482.
23. What has been long held as to the visitation of hospitals, spiritual and lay; what does the statute 14 Eliz. c. 5 direct on the subject; and by whom are all the hospitals founded by the statute 39 Eliz. c. 5 to be visited? 482.
24. Are colleges lay or ecclesiastical corporations? 483.
25. To whom do the lands and tenements of a corporation revert upon its dissolution? 484.
26. What becomes of the corporation’s debts upon its dissolution? 484.
27. By what four methods may a corporation be dissolved? 485.
28. What is an information in nature of a writ of quo warranto; and when may it be brought? 485.
29. What is enacted as to the franchises of the city of London? 485.
30. What is provided against the dissolution of corporations? 485.
OF THE RIGHTS OF THINGS.
Of Property in General.
1.What do the writers on natural law style those rights which a man may acquire in and to such external things as are unconnected with his person? 1.
2. In what has all dominion over external things its original? 2.
3. In those times when all things were in common among men, what first gave to one man a transient property in the use of a thing? 3.
4. What circumstances must soon have pointed out the necessity of appropriating to individuals not the immediate use only, but the substance, of the thing to be used; and how must that property have been originally acquired? 4-9.
5. What was the origin of conveyances, wills, heirships, and escheats? 9-13.
6. But are there not some few things which are capable only of a transient usufructory property, and which must therefore still remain in common? 14.
7. And are there not other things in which a permanent property may subsist, and which yet would be frequently found without a proprietor had not the law provided a remedy for this inconvenience? 14, 15.
Of Real Property; and, first, of Corporeal Hereditaments.
1.What are the objects of dominion or property, as contradistinguished from what? 16.
2. Into what two kinds are things, by the law of England, distributed? 16.
3. What is the commentator’s definition of the first kind of things? 16.
4. What of the second? 16.
5. Of what three sorts or kinds are things real usually said to consist? 16.
6. What is a tenement in law? 17.
7. How does Sir Edward Coke define a hereditament? 17.
8. Does either of these kinds of things real include the other? 17.
9. Of what two kinds are hereditaments; and of what do each of those kinds consist? 17.
10. Under what general denomination may all corporeal hereditaments be comprehended? 17.
11. If I convey the land, doth the structure upon it pass with it? 18.
12. How is water considered in law; and by what description must an action be brought to recover it? 18.
13. What extent hath land, in its legal signification, upwards and downwards? 18.
14. What passes in law by a grant of water? 19.
Of Incorporeal Hereditaments.
1.What is an incorporeal hereditament? 20.
2. Of what ten sorts do incorporeal hereditaments principally consist? 21.
3. What is an advowson? 21.
4. What is the difference between an advowson appendant and an advowson in gross? 22.
5. What is an advowson presentative? 22.
6. What is an advowson collative? 22.
7. What is an advowson donative? 23.
8. What are tithes, whether predial, mixed, or personal? 24.
9. To whom are they due? 28.
10. By what two means may lands be discharged from the payment of tithes? 28.
11. What is a real composition; and by what means has it grown into desuetude? 28, 29.
12. What is a modus decimandi, or modus only, as it is called? 29.
13. What six rules must be observed to make the modus good and sufficient? 30.
14. What is a rank modus? 30.
15. What is a prescription de non decimendo? 31.
16. Who are personally entitled to the privilege of being discharged from the payment of tithes? 31.
17. From what original have sprung all the lands which, being in lay hands, do at present claim to be tithe-free? 32.
18. What is right of common? 32.
19. Of what four sorts does common chiefly consist? 32.
20. What is common of pasture; and of what four species does it consist? 32.
21. What is common appendant? 33.
22. What is common appurtenant? 33.
23. What is common because of vicinage? 33.
24. What is common in gross? 34.
25. What is called a lord of a manor’s approving? 34.
26. What is common of piscary? 34.
27. What is common of turbary? 34.
28. What is common of estovers or botes? 35.
29. What is right of way; and on what three reasons may it be grounded? 35, 36.
30. Upon what principle of law, when a man grants me a piece of ground in the middle of his field, does he at the same time tacitly and impliedly give me a way to come at it? 36.
31. What are offices? 36.
32. What are dignities? 37.
33. What are franchises or liberties? 37.
34. Wherein do a forest, a chace, and a park differ? 38.
35. What is a free warren? 38, 39.
36. How comes it to pass that a man and his heirs have sometimes free warren over another’s ground? 39.
37. What is a free fishery; and by what was the making grants of such a franchise prohibited? 39.
38. Wherein does a free fishery differ from a several one and a common of piscary? 39, 40.
39. What are corodies? 40.
40. What is an annuity; and wherein does it differ from a rent charge? 40.
41. What are rents? 41.
42. What are the four requisites to a rent? 41.
43. What are the three manner of rents at common law? 41.
44. What is rent-service? 42.
45. What is rent-charge? 42.
46. What is rent-seck? 42.
47. What are rents of assize? 42.
48. What are chief-rents? 42.
49. What are quit-rents? 42.
50. What were anciently called white-rents or blanch farms, reditus albi, in contradistinction to reditus nigri or black-mail? 42.
51. What is rack-rent? 43.
52. What is a fee-farm rent? 43.
53. Where and when is rent regularly due and payable? 43.
Of the Feodal System.
1.Whence is the origin of the constitution of feuds? 45.
2. What were feuds? 45.
3. Upon what condition were they held; and what was the nature of the feodal constitution? 46.
4. At about what time was the feodal polity received in England? 48.
5. Into what historical mistake have many writers been led by not understanding the feodal acceptation of the word conquest? 48.
6. Upon the introduction of the feodal system into England, what became the fundamental maxim and necessary principle of our English tenures? 51.
7. How was the feodal system affected by king Henry I.’s charter? 52.
8. How by that of king John, confirmed by his son Hen. III.? 52.
9. What were the grantor and grantee of a feud respectively called? 53.
10. What was the ceremony of granting a feud? 53.
11. What were the oaths of fealty and homage? 53, 54.
12. What was the twofold nature of the feudatory’s service or suit? 54.
13. Why were the feudatories distinguished by the appellation of pares curtis or curiæ? 54.
14. How were feuds hereditary? 55, 56.
15. Why could neither the lord nor the vassal aliene their estates without the consent of each other? 57.
16. Whence came feodal tenures to be divided into feodal propria et impropria; and what was the difference between such feuds? 57, 58.
Of the Ancient English Tenures.
1.Why are the words tenement, tenant, and tenure so universally applied in speaking of all the real property of the kingdom? 59.
2. Who is the lord paramount of England? 59.
3. Who were called tenants paravail? 60.
4. Who were called tenants in capite? 60.
5. Of what two kinds, in respect of their quality, were the services that were due on account of the four principal species of lay tenure, to which all other tenures that subsisted among our ancestors may be reduced? 60.
6. Of what two kinds were they in respect of their quantity and the time of exacting them? 60.
7. What were free services? 60.
8. What were base services? 61.
9. What were the certain services? 61.
10. What were the uncertain services? 61.
11. What, according to Bracton, were these four principal species of lay-tenure, to which all other tenures that subsisted among our ancestors may be reduced? 61, 62.
12. What constituted a tenure by knight-service, and what was the service? 62.
13. What was this tenant’s reditus, his rent or service, for the land he claimed to hold? 62.
14. What were the seven fruits and consequences inseparably incident to this tenure? 63.
15. What were the three principal aids which were taken by the lord of this tenant? 63.
16. What did king John’s magna carta ordain as to aids? 64.
17. What did the statute called confirmatio chartarum ordain as to aids? 64.
18. What did the statute of Westminster fix as to aids? 65.
19. What was relief, and how was it compounded for? 65, 66.
20. What was primer seisin? 66.
21. What was wardship? 67.
22. What was livery or ousterlemain? 68.
23. What was an inquisitio post mortem? 68.
24. Who was compelled to receive the order of knighthood or to pay a fine to the king? 69.
25. What was the right of marriage (maritagium, as contradistinguished from matrimonium)? 70.
26. What were fines upon alienation? 71.
27. What was an attornment? 72.
28. What was escheat? 72.
29. What was the tenure by grand serjeanty, per magnum servitium? 73.
30. What was tenure by cornage? 74.
31. What was tenure by scutage, or escuage, servitium scuti? 74.
32. What did magna carta declare as to scutage? 74.
33. By what means were all the advantages of the feodal constitution destroyed? 75.
34. To whom do we owe the plan for the abolition of the feodal system? 76, 77.
35. What actually gave it its death-blow? 77.
Of the Modern English Tenures.
1.What, in its most general and extensive signification, is socage, to which all tenures, except frankalmoign, grand serjeanty, and copyhold, were reduced upon the abolition of the feodal system? 78, 79.
2. Of what two sorts is socage? 79.
3. What is the etymology of the word? 80, 81.
4. Does free and common socage tenure remain in any part of England to this day; and what people’s liberty does that remnant prove socage to have been? 81.
5. Since the certainty of its services is the grand criterion of socage, what will this species of tenure include? 81.
6. What is petit-serjeanty? 82.
7. What is tenure in burgage? 82.
8. What is the custom of borough-English? 83.
9. What are the four distinguishing properties of tenure in gavelkind? 84.
10. In what points does tenure in free socage partake of the feodal nature? 85-89.
11. But wherein did the socage and the feodal tenures widely differ as to service, relief, wardship, and marriage? 86-89.
12. When was the feodal tenure abolished and sunk into the socage? 89.
13. What species of our modern tenures has arisen from pure villenage? 90.
14. What is a manor? 90.
15. What was the difference between book-land and folk-land? 90.
16. What is a court-baron; and what happens if the number of suitors should not be sufficient to make a jury of two? 90, 91.
17. What is an honour? 91.
18. What did the 32d chapter of magna carta, 9 Hen. III., and the statute of Westminster, declare as to all sales or feoffments of land; and what is now therefore essential to a manor? 91, 92.
19. What were pure villeins; and of what two classes? 92-94.
20. What was a neife? 94.
21. In case of a marriage between a freeman and a neife, or a villein and a freewoman, were the issue free or villein? 94.
22. Why could not a bastard be born a villein? 94.
23. In what cases had the villein remedy at law against the lord? 94.
24. How might a villein be enfranchised? 94.
25. What was implied manumission? 94, 95.
26. How came villeins to be called tenants by copy of court-roll? 95.
27. How did villenage decline and fall? 95, 96.
28. From what has been premised, what two indispensable principles of copyhold tenure may we collect? 97.
29. In what degree have the customs of manors superseded the will of the lord? 97.
30. What four fruits and appendages has a copyhold tenure, whether of inheritance or for life, in common with free tenures? 97.
31. What three besides has a copyhold? 97.
32. What is a heriot? 97.
33. What is wardship in copyhold estates? 98.
34. What are fines; and what has the law declared to be the ultimatum of their amount? 98.
35. What was privileged villenage or villein socage? 99.
36. What species of our modern tenures has arisen from this ancient one? 99.
37. Of what does ancient demesne consist? 99.
38. What immunities have tenures of ancient demesne? and in what do lands holden by this tenure differ from common copyholds? 99-101.
39. To what two species are all lay tenures now in effect reduced? 101.
40. What is that tenure of a spiritual nature which was reserved by the statute of Charles II.? 101.
41. To what services only are the holders of lands under this tenure liable? 101, 102.
42. Wherein did this tenure materially differ from what was called tenure by divine service? 102.
43. Can lands be given to be held by this tenure now? 102.
Of Freehold Estates of Inheritance.
1.What does an estate in lands, tenements, and hereditaments signify? 103.
2. To ascertain this signification with proper accuracy, in what threefold view may estates be considered? 103.
3. What is the primary division of estates with regard to their quantity of interest? 104.
4. How does the commentator define an estate of freehold? 104.
5. What is the twofold nature of estates of freehold (thus understood)? 104.
6. Into what two species are estates of freehold of the former nature again divided? 104.
7. Who is tenant in fee simple or tenant in fee? 104.
8. What, and in contradistinction to what, is the true meaning of the word fee? 104, 105.
9. By what words do we, in the most solemn acts of law, express the highest estate that any subject can have? 105.
10. In contradistinction to what has the word fee the adjunct of simple annexed to it? 106.
11. Of what species of hereditaments can a man not be said to be seised in his demesneas of fee? 106, 107.
12. What word is necessary, in the grant or donation, in order to make a fee or inheritance? 107, 108.
13. But by what five exceptions is this rule now softened? 108, 109.
14. Into what two sorts may we divide limited fees? 109.
15. What is a base or qualified fee? 109.
16. What was a conditional fee at the common law? 110.
17. What did our ancestors hold with regard to the condition annexed to such a fee? 110, 111.
18. But what if the tenant did not in fact aliene the land, and if then both the tenant and the issue died? 111.
19. What did the statute of Westminster the second (commonly called the statute de donis conditionalibus) enact as to conditional fees? 112.
20. Whence is the origin of fee-tail and reversion? 112.
21. What things may, and what may not, be entailed under the statute de donis? 113.
22. What is the first division of the several species of estates tail? 113.
23. What is tail general? 113.
24. What is tail special? 113, 114.
25. By what distinction are estates in general and special tail further diversified? 114.
26. What word is necessary to make a fee-tail? 114, 115.
27. Is there not another species of entailed estates, now grown out of use, but still capable of subsisting in law? 115.
28. What is this defined to be? 115.
29. What are the four incidents to a tenancy in tail under the statute of Westminster the second? 115, 116.
30. What and when was declared the first sufficient bar of an estate tail? 116, 117.
31. Can an estate tail be forfeited to the king upon any conviction of high treason? 117, 118.
32. Do leases made by tenants in tail bind the issue in tail? 118.
33. What construction was put upon the statute of fines by the statute 32 Hen. VIII. c. 36? 118.
34. What exceptions were made by this statute as to fines, and by the statute 34 & 35 Hen. VIII. c. 20 as to common recoveries? 118, 119.
35. Of what debts are estates tail liable to the payment? 119.
36. What appointment of lands entailed by tenant in tail is good without fine or recovery? 119.
37. What difference is there, then, between the present estates tail and the old conditional fees after the condition was performed? 119.
Of Freeholds not of Inheritance.
1.Of what two species are such estates of freehold as are not of inheritance, but for life only? 120.
2. In what two ways may an estate of the first species be created? 120, 121.
3. What is a tenant pur auter vie? 120.
4. Against whom (with what exception) does the law say that all grants are to be taken most strongly? 121.
5. Are there not some estates for life which may determine before the life expires? 121.
6. Why, in conveyances, is the grant usually made “for the term of a man’s natural life”? 121.
7. What are the two principal incidents to all estates for life? 122.
8. What are emblements? 122.
9. Who is a cestuy que vie? 123.
10. When is a tenant for life not entitled to emblements? 123.
11. Are the advantages of emblements extended to the parochial clergy? 123.
12. What incidents have under-tenants or lesses of estates for life above their lessors? 123, 124.
13. What is the estate for life (of the second species of such estates) of a tenant in tail after possibility of issue extinct? 124.
14. By what only is a possibility of issue extinct in law? 125.
15. Wherein does this estate partake both of an estate-tail and an estate for life? 125, 126.
16. What is a tenancy by the curtesy of England? 126.
17. What four requisites are necessary to make a tenancy by the curtesy? 127.
18. What does the husband become by the birth of the child; and what is he not till the death of the wife? 127, 128.
19. What is a tenancy in dower? 129.
20. Who may and may not be endowed? 180.
21. What crimes of the husband bar the wife’s dower? 130, 131.
22. Of what may and may not a wife be endowed? 131.
23. Upon what principle are all endowments made? 131.
24. How long must the husband be seised of land in order to entitle the widow to dower? 132.
25. What is usually called the widow’s freebench? 132.
26. What are the four species of dower now subsisting? 132, 133.
27. Of what part of his lands might a husband endow his wife ad ostium ecclesiæ? 133-135.
28. What is now the only usual species of endowment? 135.
29. What is called the widow’s quarantine? 135.
30. What is a writ of admeasurement of dower? 136.
31. How may dower be barred or prevented? 136, 137.
32. How is a jointure defined by Sir Edward Coke? 137.
33. What did the statute of uses provide as to barring a wife of dower? 137, 138.
34. What four requisites must be punctually observed to make a jointure good? 138.
35. What if the jointure be made to the wife after marriage? 138.
36. What if the jointress be evicted of her jointure on account of its being made on a bad title? 138.
37. What are the comparative advantages of situation between tenant in dower and jointresses? 138, 139.
Of Estates less than Freehold.
1.What are the three sorts of estates less than freehold? 140.
2. What is an estate for years? 140.
3. What is a month in law? 141.
4. What is a lease for a twelvemonth? 141.
5. How many hours does the law reckon in the space of a day? 141.
6. How might a lessee estate be defeated by the ancient law? 142.
7. What is an indispensable requisite to an estate for years? 143.
8. Why cannot a lease for life commence in future, though a lease for years may? 143, 144.
9. What right has a tenant for years in the tenement? 144.
10. Of what is he possessed when he has entered the tenement? 144.
11. What is the legal difference between the term and the time of a lease for years? 144.
12. What are the incidents to an estate for years? 144, 145.
13. What is the difference of situation between a tenant for life and a tenant for years with regard to emblements? 145.
14. What is an estate at will? 145.
15. In what case is a tenant at will entitled to emblements? 146.
16. What act amounts to a determination of the will on either side? 146.
17. How have courts of law leaned in construing demises where no certain term is mentioned? 147.
18. What notice is requisite to determine a tenancy from year to year? 147.
19. In what one species of estate at will is the will qualified by what? 147, 148.
20. What seems to have been the reason why the absolute freehold was never granted by lords to their villeins? 148, 149.
21. What kind of freehold have customary freeholders? 149.
22. What are the comparative advantages of interest between a copyholder of inheritance with a fine certain and an absolute freeholder? 150.
23. What is an estate at sufferance? 150.
24. Against whom can no man be tenant at sufferance? 150.
25. How must an owner of lands vary his proceeding in an action of trespass against a tenant by sufferance from the same action against a stranger? 150.
26. What have the statutes 4 & 11 Geo. II. c. 23 and 19 enacted in the cases of a tenant’s holding over his term or his own notice to quit? 151.
Of Estates upon Condition.
1.What are estates upon condition? 152.
2. Of what two sorts are estates upon condition? 152.
3. What three other conditional estates are included under this last sort? 152.
4. What are estates upon condition implied in law? 152.
5. By what two breaches of an implied condition may an office be forfeited? 153.
6. How do a public and a private office differ in respect of forfeit? 153.
7. Upon what principle proceed all the forfeitures which are given by law of life estates and others? 153.
8. What is an estate on condition expressed? 154.
9. Of what two sorts are condition expressed? 154.
10. What is an estate “to a man and his heirs, tenants of the manor of Dale”? 154.
11. What is the distinction between a condition in deed and a limitation or condition in law? 155.
12. In all instances of limitations or conditions subsequent, where the condition is contingent and uncertain, what estate has the grantee so long as the condition remains unbroken? 156.
13. When are conditions void? 156.
14. When are estates, upon void conditions, absolute in the tenant, and when in the feoffor? 157.
15. Of what two kinds are estates held in vadio, in gage, or pledge? 157.
16. What is vivum vadium, or living pledge? 157.
17. What is mortuum vadium, dead pledge or mortgage? 157, 158.
18. Who was tenant in mortgage? 158.
19. Whence is the origin of granting a long term of years by way of mortgage? 158.
20. What is equity of redemption? 159.
21. What is a foreclosure? 159.
22. What are estates held by statute merchant and statute staple? 160.
23. What is an estate by elegit? 161.
24. Why are estates by statute merchant, statute staple, and elegit, chattel interests, and not freehold? 161, 162.
Of Estates in Possession, Remainder, and Reversion.
1.Of what two natures are estates with regard to the time of their enjoyment? 163.
2. What two sorts of expectancy are there; and by what acts are they severally created? 163.
3. What is the difference between estates executed and estates executory? 163.
4. What may an estate in remainder be defined to be? 164.
5. When lands are granted to A. for twenty years, with remainder to B. and his heirs forever, are not these two estates? 164.
6. What are the three rules laid down by law to be observed in the creation of remainders? 165, 167, 168.
7. What is called the particular estate? 165.
8. Why cannot an estate of freehold be created to commence in futuro? 166.
9. Is a remainder an estate commencing in præsenti or in futuro? 165, 166.
10. What particular estate will, and when will a particular estate not, support a remainder over? 166, 167.
11. Can a remainder be granted of a chattel interest? 167.
12. In what case is it necessary that a lessee for years should have livery of seisin? 167.
13. Need the precedent particular estate and the remainder be in esse at one and the same time during the continuance of the first estate; or what latitude is allowed? 168.
14. Of what two sorts are remainders? 168.
15. What are vested or executed remainders? 168, 169.
16. On account of what two sorts of uncertainty may remainders be contingent or executory? 169.
17. What is enacted by statute 10 & 11 W. III. c. 16 as to posthumous children taking remainders? 169.
18. What are potentia propinqua and potentia remotissima? 170.
19. Why cannot a contingent remainder of freehold be limited on any particular estate less than a freehold? 171.
20. How may contingent remainders be defeated? 171.
21. Is there no way of preventing this defeat? 171.
22. What is an executory devise? 172.
23. In what three points does it differ from a remainder? 172, 173.
24. Why may a devise of freehold commence in futuro? 173.
25. Within what time does the law’s abhorrence of a perpetuity declare that the contingencies of an executory devise ought to be such as may happen? 173, 174.
26. Why does the law abhor a perpetuity? 174.
27. What has been settled in order to prevent the danger of perpetuities as to the persons to whom remainders may, by an executory devise, be limited over after a term of years has been given to one man for his life; and what has been also settled as to the contingencies upon which such remainders may be limited to take effect? 174, 175.
28. What is an estate in reversion? 175.
29. What are the two usual incidents to reversions? 176.
30. What is enacted by the statute 6 Anne, c. 18 in order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their deaths? 177.
31. What happens whenever a greater estate and a less coincide in the same person in the same right without any intermediate estate? 177.
32. What one exception is there to this rule; and what is the reason of this exception? 177, 178.
Of Estates in Severalty, Joint-Tenancy, Coparcenary, and Common.
1.In what four different ways may estates be held with respect to the number and connections of their owners? 179.
2. Who is tenant in severalty? 179.
3. What is an estate in joint-tenancy? 179.
4. How may this estate be created? 180.
5. From what are the properties of a joint-estate derived? 180.
6. Of what four kinds is the unity of a joint-estate? 180-182.
7. If an estate in fee be given to a man and his wife, how are they seised? 182.
8. Upon the decease of one joint-tenant, what share of the estate remains to the survivor; and why? 183, 184.
9. Why cannot the king, or any corporation, be joint-tenant with a private person? 184.
10. How may an estate in joint-tenancy be severed and destroyed? 185.
11. But why is a devise of one joint-tenant’s share by will no severance of the jointure? 186.
12. In what case is it disadvantageous for joint-tenants to dissolve the jointure? 187.
13. What is an estate held in coparcenary? 187.
14. Who are parceners by common law? 187.
15. Who are parceners by particular custom? 187.
16. What are the properties of parceners? 188.
17. Which of the four unities of a joint-estate have parceners? 188.
18. In what five points do parceners differ from joint-tenants? 188.
19. What are the five methods in which parceners may make partition? 189.
20. What is the law of hotchpot, which is incident to this estate? 190, 191.
21. In what three ways may an estate in coparcenary be dissolved? 191.
22. Who are tenants in common? 191-193.
23. Which of the four unities of a joint-estate have tenants in common? 191.
24. By what two means may tenancy in common be created? 192, 193.
25. Does the law, in its construction of a deed, favour joint-tenancy or tenancy in common? 193.
26. What are the incidents attending a tenancy in common? 194.
27. In what two ways only can estates in common be dissolved? 194.
Of the Title to Things Real in General.
1.What is the title to things real? 195.
2. What are the four several stages or degrees requisite to form a complete title to lands and tenements? 195-197, 199.
3. What is the mere naked possession; how may it happen; and in what degree is it a legal title? 195, 196.
4. What are the two sorts of right of possession; and by what means may the first grow into the second? 196, 197.
5. What is the mere right of property; and how can it recover the right of possession? 197, 198.
Of Title by Descent.
1. By what two methods may the title to things real be reciprocally acquired on the one hand and lost on the other? 201.
2. What is the title by descent? 201.
3. What is consanguinity; and of what two kinds? 202.
4. Wherein do these two kinds of consanguinity differ? 203, 204.
5. In what does the very being of collateral consanguinity consist? 205.
6. What is the method of computing the degrees of collateral consanguinity? 206, 207.
7. What is the first rule or canon of inheritance according to which estates are transmitted from the ancestor to the heir? 208, 210.
8. What is the difference between an heir apparent and an heir presumptive? 208.
9. Who cannot be accounted such an ancestor as that an inheritance of lands or tenements can be derived from him? 209.
10. What is the second rule or canon of inheritance? 212, 213.
11. What is the third rule or canon of inheritance? 214, 216.
12. What are exceptions to this rule? 216.
13. In what one inheritance does succession by primogeniture take place among females? 216.
14. In what one inheritance does sole succession take place among females? 216.
15. What is the fourth rule or canon of inheritance? 217.
16. When is an inheritance divided per stirpes, and when per capita? 217, 218.
17. What is the fifth rule or canon of inheritance? 220, 222.
18. What is the great and general principle upon which the law of collateral inheritances depends? 223.
19. What is the sixth rule or canon of inheritance, being, like the seventh and last, only a rule of evidence who the purchasing ancestor was? 224.
20. Who is a kinsman of the whole blood? 227.
21. Why is the exclusion of a kinsman of the half-blood not unreasonable? 228-232.
22. What one inheritance may descend to the half-blood of the person last seised, so that it be the blood of the first purchasor; and why? 233.
23. For this reason, in what kind of estate is half-blood no impediment to the descent? 233.
24. What is the seventh and last rule or canon of inheritance? 234.
25. What is the most probable original of this rule? 235.
26. When is this rule totally reversed? 236.
Of Title by Purchase; and, first, by Escheat.
1.What is purchase, taken in its largest and most extensive sense? 241.
2. If an estate be made to A. for life, remainder to his right heirs in fee, by what shall the heirs take? 242.
3. What was meant by calling William the Norman Conqueror? 243.
4. In what two points does the difference in effect between the acquisition of an estate by descent and by purchase principally consist? 243, 244.
5. What five methods of acquiring a title to estates does purchase include? 244.
6. What is escheat? 244, 245.
7. Upon what principle is the law of escheats founded? 245.
8. What are the first three cases wherein inheritable blood is wanting? 246.
9. What is the fourth case wherein inheritable blood is wanting? 246, 247.
10. What is the fifth case? 247, 248.
11. Who are bastard eignè and mulier puisnè; and in what case may the former bar the latter of his inheritance; and this for what three reasons? 248.
12. What legal heirs can a bastard have? 249.
13. What is the sixth case wherein inheritable blood is wanting? 249.
14. What is the difference of inheritable operation on the blood of alien in the acts of denization and of naturalization? 249, 250.
15. If an alien come into England and there have issue two sons, who are thereby natural-born subjects, and one of them purchase land and die, who cannot be his heir, and why? 250.
16. What is enacted by the statute 11 & 12 W. III. c. 6 as to the inheritance of natural-born subjects deriving their pedigrees through aliens; and how is this statute qualified by that of 25 Geo. II. c. 39? 251.
17. What is the seventh case wherein inheritable blood is wanting? 251.
18. What is the difference between forfeitures of lands to the king and escheat to the lord? 251-254.
19. By what means only can the corruption of blood be absolutely removed? 254.
20. If a man attainted be pardoned by the king, can his son inherit? 254.
21. If a man have issue a son and be attainted, and afterwards pardoned, and then have issue a second son and die, who cannot be his heir, and why? 255.
22. If the ancestor be attainted, may his sons be heirs to each other? 255.
23. What is declared in most of the new felonies created by act of parliament since the reign of Hen. VIII.; and wherefore is it so? 256.
24. In what singular instance are lands held in fee-simple not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them? 256, 257.
25. What is the eighth and last case wherein inheritable blood is wanting; and how does this case differ from all the rest? 257.
Of Title by Occupancy.
1.What is occupancy? 258.
2. To what single instance, so far as it concerns real property, have the laws of England confined this right? 258.
3. Why was no right of occupancy allowed where the king had the reversion of the lands? 259.
4. What if the estate pur auter vie had been granted to a man and his heirs? 259.
5. But what do the statutes of 29 Car. II. c. 3 and of 14 Geo. II. c. 20 enact as to this estate? 259, 260.
6. What is the commentator’s opinion as to the operation of these statutes? 260.
7. What is the law of alluvion and dereliction? 261, 262.
Of Title by Prescription.
1.What is title by prescription; and how is it distinguished from custom? 263.
2. What is called prescribing in a que estate? 264.
3. What has the statute of limitations, 32 Hen. VIII. c. 2, enacted as to prescriptions? 264.
4. What sort of hereditaments may be claimed by prescription? 264.
5. Why cannot a prescription give a title to lands? 264.
6. In whom must a prescription be laid? 265.
7. If the thing prescribed has what incapacity, why cannot the prescription be made? 265.
8. Why cannot deodands, felons’ goods, and the like be prescribed for, while treasure-trove, waifs, estrays, and the like can? 265.
9. For what more may a man prescribe in himself and his ancestors than he may in a que estate; and why may he do so? 266.
10. Is there not a difference in the inheritance of a thing prescribed in one’s self and one’s ancestors, and one prescribed in a que estate? 266.
Of Title by Forfeiture.
1.What is forfeiture? 267.
2. By what eight means may lands, tenements, and hereditaments be forfeited? 267.
3. What are the six offences which induce a forfeiture of lands and tenements to the crown? 267, 268.
4. Of what three kinds is the alienation contrary to law which induces a forfeiture? 268.
5. What is alienation in mortmain, in mortua manu? 268.
6. How were common recoveries invented? 271.
7. How were uses and trusts invented? 272.
8. What is license of mortmain; and how has it been dispensed with? 272, 273.
9. What is enacted by the statute 9 Geo. II. c. 36 as to lands and tenements, or money to be laid out thereon, given for or charged with charitable uses? 273, 274.
10. Who are excepted out of this act; and with what proviso is the exception made? 274.
11. Why is alienation to an alien a cause of forfeiture? 274.
12. When are alienations by particular tenants forfeitures; and to whom, and for what two reasons? 274, 275.
13. What is it if tenant in tail alienes in fee and why? 275.
14. In case of forfeiture by particular tenants, what becomes of all legal estates by them before created? 275.
15. What is disclaimer, in its nature and consequences? 275, 276.
16. What is forfeiture by lapse? 276.
17. In what two cases can no right of lapse accrue? 276.
18. What is the term in which the title to present by lapse accrues? 276, 277.
19. What if the bishop be both patron and ordinary? 277.
20. What if the bishop or metropolitan do not present immediately upon lapse? 277.
21. What if the king do not? 277.
22. In what cases only is the bishop required to give notice of a vacancy to the patron, in order to entitle him, the metropolitan, and the king to the advantage of a lapse? 278.
23. When does the law style the bishop a disturber; and of what does it consequently deprive him? 278.
24. What if the right of presentation be contested? 278.
25. What is forfeiture by simony? 278, 279.
26. Is it simony to purchase a presentation, the living being actually vacant? 279.
27. Is it simony for a clerk to purchase the next presentation and be thereupon presented? 279, 280.
28. Is it simony for a father to purchase such a presentation for his son? 280.
29. What if a simoniacal contract be made with the patron, the clerk not being privy thereto? 280.
30. Are bonds given to pay money to charitable uses on receiving a presentation to a living simoniacal? 280.
31. What bonds of resignation are not simoniacal? 280.
32. Are general bonds of resignation legal? 280.
33. What are the only causes for which the law will justify the patron’s making use of such a general bond of resignation? 280.
34. Of what two kinds are the conditions the breach or non-performance of which induces a forfeiture? 281.
35. What is waste, and of what two kinds? 281.
36. What are the general heads of waste in houses, in timber, and in land? 281, 282.
37. Who are liable to be punished for waste, and who not? 282, 283.
38. What is the punishment for committing waste? 283, 284.
39. By what may copyhold estates be forfeited? 284.
40. Who is a bankrupt? 285.
41. What becomes of a bankrupt’s lands and tenements? 285, 286.
42. With only what exception has the statute 21 Jac. I. c. 19 authorized the disposal of a oankrupt’s estate-tail in possession, remainder, or reversion? 286.
Of Title by Alienation.
1.What is alienation, conveyance, or purchase, in its limited sense? 287.
2. Who are capable of conveying and purchasing? 290.
3. How alone may contingencies and mere possibilities be assigned to a stranger? 290.
4. What seven descriptions of persons are incapable of conveying? 290-293.
5. Are the conveyances and purchases of idiots and persons of non-sane memory, infants, and persons under duress, void? 291.
6. May a non compos plead his own disability in order to avoid his acts? 291, 292.
7. May his next heir, or other person interested, plead it? 292.
8. How may the purchase of a feme-covert be avoided? 293.
9. What of the conveyance or other contract of a feme-covert? 293.
10. What only can an alien hold? 293.
11. What are the legal evidences of alienations called? 294.
12. Of what four kinds are these common assurances? 294.
Of Alienation by Deed.
1.What is a deed in its general nature? 295.
2. What is an indenture? 295.
3. What is a chirograph? 296.
4. Which is the original, and which the counterpart, of a deed? 296.
5. What is a deed-poll? 296.
6. What are the eight requisites of a deed? 296-298, 304-308.
7. What are the eight usual, formal, and orderly parts of a deed? 298-301, 304.
8. What are the premises of a deed? 298.
9. What are the habendum and tenendum? 298, 299.
10. What is the reddendum? 299.
11. What is a condition? 299, 300.
12. What is the clause of warranty? 300.
13. What was the origin of express warranties? 301.
14. What was the difference between lineal and collateral warranty? 301, 302.
15. What was a warranty commencing by disseisin? 302.
16. In case the warrantee was evicted, what was the obligation of the heir? 302.
17. What warranties against the heir are now good? 302, 303.
18. What are covenants? 304.
19. What is the difference of effect between covenanting for heirs and covenanting for executors and administrators? 304.
20. For what reasons has the covenant, in modern practice, totally superseded the warranty? 304.
21. Of what does the conclusion of a deed consist? 304.
22. Is a deed good with no, or a false date? 304.
23. When is it necessary to the validity of a deed to read it to the parties? 304.
24. What if a deed be read falsely? 304.
25. Is it necessary to sign as well as seal a deed? 305, 306.
26. What is the delivery of a deed; and what is its efficacy? 307.
27. What is the difference between a deed and an escrow? 307.
28. Of what use is the attestation of a deed? 307.
29. Must the witnesses sign the deed? 307, 308.
30. By what five means may a deed be avoided? 308, 309.
31. What are those deeds called which are generally used in the alienation of real estates? 309.
32. Of what two natures are conveyances as to the manner in which they receive their force and efficacy? 309.
33. Of what two kinds are conveyances by the common law? 309.
34. What are the six species of original conveyances; and what the five of derivative? 310.
35. What is a feoffment? 310.
36. What is necessary to the perfection of a feoffment? 311.
37. What if an heir dies before entry made upon his estate? 312.
38. By what delivery is a conveyance of a copy-hold estate made to this day? 313.
39. What is necessary, by the common law, to be made upon every grant of an estate of freehold in hereditaments corporeal? 314.
40. What is necessary in leases for years? 314.
41. Why cannot freeholds be made to commence in futuro? 314.
42. If a freehold remainder be created after, and expectant on, a lease for years now in being, to whom must the livery be made? 314, 315.
43. Of what two kinds is livery of seisin? 315.
44. How is livery in deed performed? 315, 316.
45. What is livery in law? 316.
46. What is the conveyance by gift, donatio? 316, 317.
47. What are grants, concessiones? 317.
48. What is a lease? 317, 318.
49. What was the old meaning of the word farm, in which sense it is used in the operative words of a lease, “to farm let”? 318.
50. To what one species of leases is livery of seisin necessary? 318.
51. What three manner of persons does the enabling statute, 32 Hen. VIII. c. 28, empower to make leases for three lives or one and-twenty years? 319.
52. But what are the nine requisites that the statute specifies which must be observed in order to render the leases binding? 319, 320.
53. Unless under what six regulations do the disabling or restraining statutes of Elizabeth restrain all ecclesiastical or eleemosynary corporations, and all parsons and vicars, from making any leases of their lands? 320, 321.
54. Is there not another restriction with regard to college-leases by the statute 18 Eliz. c. 6? 322.
55. What restraint upon the leases of beneficed clergymen does non-residence place? 322.
56. What is an exchange? 323.
57. Is either livery of seisin or entry necessary in order to perfect an exchange? 323.
58. What is a partition? 324.
59. Can a partition be made by parol only, in any case? 324.
60. What is a release? 324.
61. For what five purposes may releases enure? 324, 325.
62. What is a confirmation? 325, 326.
63. Why is not a livery of seisin necessary to a release or confirmation of lands? 325, 326.
64. What is a surrender? 326.
65. Why is not a livery of seisin necessary to a surrender? 326.
66. What is an assignment; and wherein does it differ from a lease? 326, 327.
67. What is a defeazance; and may it be made after the original conveyance? 327.
68. What are uses and trusts in our law? 328.
69. Who were the terre-tenant, and who the cestuy que use, or the cestuy que trust? 328.
70. What was done by the statute of uses, 27 Hen. VIII. c. 10? 332, 333.
71. In what do the contingent or springing uses of a conveyance differ from an executory devise? 334.
72. Why, in both cases, may a fee be limited to take effect after a fee? 334.
73. What is a secondary or shifting use? 335.
74. What is a resulting use? 335.
75. May uses originally declared be revoked at any time and new ones declared? 335.
76. What is the origin of trusts? 335, 336.
77. How do the courts now consider a trust-estate? 337.
78. To what twelfth species of conveyance has that by livery of seisin now given way? 338.
79. What thirteenth species of conveyance has been introduced by this statute of uses? 338.
80. What was enacted by the 27 Hen. VIII. c. 16 as to bargains and sales? 338.
81. What gave rise to the fourteenth species of conveyance; and what is its nature? 338, 339.
82. What may be added as a fifteenth and a sixteenth species of conveyance? 339.
83. What are the three species of deeds used not to convey but to charge or discharge lands? 340.
84. What is an obligation or bond, whether single (simplex obligatio) or conditional; and how is it a charge upon lands? 340.
85. When is the condition of a bond void; and when the bond itself? 340, 341.
86. On the forfeiture of a bond, what sum is recoverable? 341.
87. What is a recognizance; and wherein does it differ from a bond? 341.
88. What is a defeazance on a bond or recognizance, or judgment recovered; and wherein does it differ from a common conditional bond? 342.
89. What general registers for deeds, wills, and other acts affecting real property are there in England and Scotland? 343.
Of Alienation by Matter of Record.
1.What are assurances by matter of record? 344.
2. Of what four kinds are they? 344.
3. What are the intentions of private acts of parliament? 344.
4. With what cautions and preliminaries are private acts of parliament made? 345.
5. In what are the king’s grants contained? 346.
6. What is the difference between the king’s letters-patent, literæ patentes, and his writs close, literæ clausæ? 346.
7. In what three points does the construction of the king’s grants differ from those of a subject? 347, 348.
8. What is a fine of lands and tenements? 348.
9. What is the origin of fines? 349.
10. Why is a fine so called? 349.
11. What is the action of convenant upon which the fine is founded? 350.
12. What is the primer fine? 350.
13. What is the licentia concordani? 350.
14. What is the king’s silver, or post fine? 350.
15. What is the concord; and who is the cognizor, and who the cognizee? 350, 351.
16. How must the acknowledgment be made; and how far does this acknowledgment complete the fine? 351.
17. What is the note of the fine? 351.
18. What is the foot of the fine? 351.
19. What proclamations of a fine hath the statute added to prevent the levying of one by fraud or covin? 352.
20. Of what four kinds are fines thus levied? 352, 353.
21. What is a fine sur cognizance de droit, come ceo que il ad de son done; and of what efficacy is it? 352.
22. What is a fine sur cognizance de droit tantum; and for what is it commonly used? 353.
23. What is a fine sur concessit? 353.
24. What is a fine sur done, grant, et render, and wherein does it differ from the fine sur cognizance de droit, come ceo, &c.? 353.
25. What are the force and effect of fines? 354, 355.
26. What are the three classes of persons bound by a fine? 355.
27. Who are the parties to a fine, and how are they bound? 355.
28. Who are privies, and how are they bound? 355.
29. Who are strangers, and in what cases are they bound? 356.
30. But what is necessary in order to make a fine of any avail at all? 356, 357.
31. Upon what neglect of the remainderman or reversioner does a tenant’s for life levying a fine fail to forfeit the estate from the latter to the former and bar it forever? 356.
32. What is the nature of a common recovery, and how far is it like a fine? 357.
33. What is the writ of præcipe quod reddat; and what does it allege? 358.
34. Who is the demandant, and who the defendant? 358.
35. What is the voucher, vocatio, or calling to warranty; and who is the vouchee? 358.
36. Who is the recoverer, and who the recoveree? 358.
37. What is called the recompense or recovery in value? 359.
38. Of what nature is this recompense; and who is usually the common vouchee? 359.
39. What is a recovery with double voucher; and why is it now usually employed? 359.
40. What is the reason why the issue in tail is held to be barred by a common recovery? 360.
41. In what light have our modern courts of justice considered common recoveries? 360.
42. How does the commentator recommend the shortening of the process of this conveyance? 361.
43. What are the force and effect of a common recovery? 361.
44. By statute, when will not a recovery bar an estate tail, and who shall not suffer a recovery? 362.
45. What, in all recoveries, is necessary on the part of the recoveree or tenant to the præcipe? 362.
46. But what are the provisions of the statute 14 Geo. II. c. 20 in order to make good a recovery? 362.
47. By what two sorts of deed may the uses of a fine or recovery be directed? 363, 364.
48. When are these deeds called deeds to lead the uses of a fine or recovery, and when deeds to declare them; for what purpose are they made; and what effect have they on the fine or recovery? 363, 364.
Of Alienation by Special Custom.
1.To what are assurances by special custom confined? 365.
2. How are copyhold lands generally transferred? 365.
3. What is surrender sursum redditio; and what is the manner of transferring copyhold estates? 365, 366.
4. What operation upon a copyhold estate has any feoffment or grant? 367.
5. If I would exchange a copyhold estate with another, or devise one, what must be done? 367, 368.
6. What effect will a fine or recovery had of copyhold lands in the king’s courts have; and how may such fine or recovery be reversed by the lord? 368.
7. What are the three several parts of the assurance by surrender? 368.
8. What part of it does the surrender itself constitute? 368.
9. What if the lord refuse to admit the surrenderee? 368.
10. Can the surrenderor retract his surrender? 369.
11. What is the presentment of the surrender; and when and by whom must it be presented? 369.
12. What if those into whose hands the surrender was made refuse to present and the lord refuse to compel them to do so? 369.
13. Of what three sorts is admittance? 370.
14. What is the lord bound to do in admittances upon a voluntary grant? 370.
15. How is the lord regarded in admittances upon surrender of a former tenant, or upon descent from the ancestor? 370, 371.
16. In what, however, do admittances upon surrender differ from admittances upon descent? 371.
17. Are heirs of copyhold compellable to be admitted? 372.
Of Alienation by Devise.
1.What is devise? 373.
2. Upon what did the restraint of devising lands take place? 373.
3. What estate only could then be devised, with what exceptions? 374.
4. In what shape did the popish clergy, who then generally sat in the court of chancery, allow of the devise of lands? 375.
5. Upon what did lands in this shape become no longer devisable? 375.
6. What did the statute of wills, 32 Hen. VIII. c. 1, enact? 375.
7. How is a devise to a corporation for a charitable use now held by the statute 48 Eliz. c. 4 to be valid? 376.
8. What does the statute of frauds and perjuries, 29 Car. II. c. 3, direct as to devises of lands? 376.
9. Are copyholds and terms for years within the statute? 376.
10. How may a will be revoked? 376.
11. What did the statute 25 Geo. II. c. 6 declare as to the witnesses to a will? 377.
12. What hath the statute 3 & 4 W. and M. c. 14 provided for the benefit of a testator’s creditors? 378.
13. How is a will of lands considered by the courts of law? 378.
14. What distinction between devises of lands and testaments of personal chattels is founded upon this notion? 378, 379.
15. What seven general rules and maxims have been laid down by courts of justice for the construction and exposition of all the species of common assurances? 379-382.
Of Things Personal.
1.What are included under the name of things personal? 384.
2. Do not things personal consist of things movable only, as things real do of things immovable? 385.
3. Under what general name, then, is the whole comprehended? 385.
4. Into what two kinds, therefore, are chattels distributed by the law? 386.
5. What are chattels real? 386.
6. Which quality of real estates have they which denominates them real; and which do they want the want of which constitutes them chattels? 386.
7. What are chattels personal? 387, 388.
Of Property in Things Personal.
1.Of what two natures is property in chattels personal? 389.
2. Into what two sorts is property in chattels personal of the former nature divided? 389.
3. What is property in chattels personal in possession absolute? 389.
4. Into what two classes does the law distinguish animals? 390.
5. What property can a man have in such animals as are domitiæ, and what in such as are feræ naturæ? 390.
6. Why, of all tame and domestic animals, does the brood belong to the mother (with what exception)? 390.
7. What is property in chattels personal, in possession qualified, limited, or special? 391.
8. On what three accounts may a qualified property subsist in animals feræ naturæ? 391.
9. What are those animals feræ naturæ in which a qualified property may be acquired per industriam hominis, by a man’s reclaiming and making them name by art, industry, and education? 392.
10. How long are these animals the property of a man? 392.
11. What animals is it felony to steal? 393.
12. What crime is it to steal such animals the stealing of which does not amount to felony? 394.
13. When, and how long, may a qualified property also subsist with relation to animals feræ naturæ. ratione impotentiœ, on account of their own inability? 394.
14. What is that qualified property which a man may have in animals feræ naturæ, propter privilegium? 394, 395.
15. What other things besides animals feræ naturæ may be the objects of qualified property; and how long does that property last? 395.
16. These kinds of qualification in property arise from the subject’s incapacity of absolute ownership; but in what cases may property be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership? 396.
17. Hath a servant who hath the care of his master’s goods or chattels any property in them? 396.
18. What is called a thing, or chose in action? 396, 397.
19. Upon what depends, and what are the only regular means of acquiring, all property in action? 397.
20. Upon all contracts, what does the law give to the party injured in case of non-performance? 397.
21. May things personal be limited by deed or will in remainder and in estate-tail? 398.
22. May things personal be vested in joint-tenancy, in common, and in coparcenary? 399.
23. But how is it held that partnership stock in trade shall always be considered? 399.
Of Title to Things Personal by Occupancy.
1.What are the twelve principal methods by which the title to things personal may be acquired and lost? 400.
2. In what eight species of goods may a property be acquired by occupancy? 401-406.
3. But what are the restrictions as to the right to seize the goods and person of an alien enemy? 401, 402.
4. To what do the restrictions which are laid upon the right to the occupancy of animals feræ naturæ principally relate? 403.
5. What constitutes an accession to property? 404, 405.
6. What is confusion of goods; and to whom does such act of confusion give the entire property? 405.
7. What hath the statute declared as to literary and other copyright? 407.
Of Title by Prerogative and Forfeiture.
1.Whatpersonal chattels may accrue to whom by prerogative? 408.
2. What if the titles of the king and the subject concur? 409.
3. In what three classes of books hath the king a kind of prerogative copyright? 410.
4. Is there not still another species of prerogative property, founded upon a very different principle from any that have been mentioned? 410, 411.
5. What four reasons have concurred for making the restrictions which the municipal laws of many nations have exerted upon the natural right of every man to pursue and take to his own use all such creatures as are feræ naturæ? 411, 412.
6. What, however, is the origin of the game-laws in England? 413-416.
7. What was done by the carta de foresta? 416.
8. Who only, by common law, have a right to take or kill any beasts of chase not also beasts of prey? 416.
9. What are free-warren and free-fishery; and what does magna carta provide as to the latter? 417.
10. Who only, by common law, can justify hunting or sporting upon another man’s soul, or, in thorough strictness, hunting or sporting at all? 417.
11. But how have the exemptions from certain penal statutes for preserving the game virtually extended what are called the qualifications to kill it? 417, 418.
12. For what twelve offences are all the goods and chattels of the offender forfeited to the crown? 421.
13. When do these forfeitures commence? 421.
Of Title by Custom.
1.What are the three sorts of customary interests which obtain pretty generally throughout most parts of the nation? 422.
2. Into what two sorts are heriots usually divided? 422.
3. What is heriot-service? 422.
4. Upon what does heriot-custom arise; and what is it defined to be? 422.
5. To what species of tenures is heriot-custom now for the most part confined? 423.
6. Of what does the heriot now usually consist; and of what estate is it always? 424.
7. Why can no heriot be taken on the death of a feme-covert? 424.
8. Can a heriot be compounded for by the payment of money? 424.
9. What are mortuaries; and why are they sometimes called corse-presents? 425.
10. To what certainty did the statute 21 Hen. VIII. c. 6 reduce mortuaries? 427.
11. What are heir-looms; what may they be by special custom; and what are they by general? 427, 428.
12. What other personal chattels are there which descend to the heir in the nature of heir-looms? 428, 429.
13. What if heir-looms are devised away from the heir by will? 429.
Of Title by Succession, Marriage, and Judgment.
1.To what is succession, in strictness of law, only applicable? 430.
2. But what sole corporations have in this respect the same powers as corporations aggregate have? 431.
3. In case a lease for years be made to the Bishop of Oxford and his successors, who shall have it; and why? 431, 432.
4. Yet what two exceptions are there to the rule that no chattel can go to corporations merely sole in right of succession? 432.
5. How are those chattels which formerly belonged to the wife vested in the husband by marriage; and how does personal property differ in this respect from real estate? 433.
6. How do a chattel real and a chattel personal or chose in action vest in the husband; and what if he die before he have recovered or reduced them into possession? 434.
7. What shall become of the chattel real and chattel personal if the wife die before the husband have done so; and why? 435.
8. How do chattels personal in possession vest in the husband? 435.
9. What are the wife’s paraphernalia? 435, 436.
10. Of what natures is property in chattel interests vested by a judgment in consequence of some suit or action? 436, 437.
11. What three species of property are of the second of these natures? 437-439.
Of Title by Gift, Grant, and Contract.
1.What is the distinction between a gift of personal property and a grant? 440.
2. What may be included under the head of gifts or grants of chattels real; and what considerations, in the eye of the law, convert the gift, if executed, into a grant, if not executed, into a contract? 440.
3. What are grants or gifts of chattels personal; and how may they be made? 441.
4. Why does the statute 3 Hen. VII. c. 4 declare all deeds of gifts of goods made in trust to the use of the donor void; and what does the statute 13 Eliz. c. 5 declare as to every grant or gift of chattels, as well as lands, with intent to defraud creditors? 441.
5. By what is a true and proper gift or grant always accompanied; and in what cases only may it be retracted? 441.
6. But what if the gift do not take effect by delivery of immediate possession? 441, 442.
7. What interest does a contract convey as distinguished from a gift or grant; and how is it defined? 442.
8. Can a chose in action be assigned? 442.
9. What are express contracts, and what implied? 443.
10. What are executed and what executory contracts; and how do they differ in the choses they convey? 443.
11. What is a good and what a valuable consideration; and how may each of these be set aside? 444.
12. In what four species are valuable considerations divided by the civilians? 444, 445.
13. What is a nudum pactum; and what degree of reciprocity will prevent it? 445, 446.
14. How far will courts of justice support a voluntary bond or promissory note; and why? 446.
15. What are the four most usual contracts whereby the right of chattels personal may be acquired in England? 446.
16. What is sale or exchange; how does the former differ from the latter; and how are both regarded by the law? 446, 447.
17. Where the vendor hath in himself the property of the goods, when only hath he not the liberty of disposing of them? 447.
18. What constitutes a sale? 447, 448.
19. But in what cases may property be transferred by sale though the vendor have none at all in the goods? 449.
20. What is market-day and market-overt in the country; and what in London? 449.
21. But what has the statute 1 Jac. I. c. 21 provided as to the sale of goods to pawnbrokers? 449.
22. And in what cases are sales not binding even in market-overt? 450.
23. What directions do the statutes 2 P. and M. c. 7 and 31 Eliz. c. 12 enact concerning the sale of horses? 450, 451.
24. What remedy has a purchasor if a vendor sell goods and chattels as his own and the title prove deficient? 451.
25. When is the vendor bound to answer for the goodness of his wares purchased? 451.
26. What is bailment; and who is the bailor, and who the bailee? 451, 452.
27. What does the law call agistment? 452.
28. If a man deliver any thing to his friend to keep for him, when is the bailee answerable for any damage or loss it may sustain? 452.
29. Why, in all instances of bailment, may the bailee, as well as the bailor, maintain an action against such as injure the chattels bailed? 452, 453.
30. What is the difference between hiring and borrowing? 453.
31. What is interest; and upon what are its doctrines grounded? 454, 455.
32. To what three practices does the circumstance of the hazard of lending money being greater than the compensation arising from the rate of interest allowed by law on the loan give rise? 457.
33. What is bottomry; and in what does it differ from respondentia? 457, 458.
34. What is enacted by the statute 19 Geo. II. c. 37 as to all moneys lent on bottomry or respondentia on vessels bound to and from the West Indies? 458.
35. What is a policy of insurance? 458, 459.
36. What is enacted by the statute 14 Geo. III. c. 48 as to insurances on lives? 459, 460.
37.Policies of insurance being contracts, the very essence of which consists in observing the purest good faith and integrity, how is fraud or undue concealment in them provided against? 460.
38. What is enacted by the statute 19 Geo. II. c. 37 as to what are denominated wagering policies? 460, 461.
39. From what does the practice of purchasing annuities for lives at a certain price or premium, instead of advancing the same sum on an ordinary loan, arise? 461.
40. What has the statute 17 Geo. III. c. 26 directed in order to throw some check upon improvident transactions of this kind? 461, 462.
41. What is now the extremity of legal interest that can be taken? 463.
42. If a contract which carries interest be made in a foreign country, of what interest will our courts direct the payment? 463, 464.
43. What does the statute 14 Geo. III. c. 79 enact as to the legality of interest on all mortgages and other securities upon estates or other property in Ireland or the plantations? 464.
44. What is debt; and in what cases may it be the counterpart of and arise from any of the other species of contracts? 464.
45. Into what three classes is debt usually divided? 465.
46. What is a debt of record? 465.
47. What is a debt by specialty or special contract? 465.
48. What are debts by simple contract? 465.
49. What is enacted by the statute 29 Car. II. c. 3 as to one person’s being responsible for the debt of another? 466.
50. What is that species of simple-contract debt now introduced into all sorts of civil life under the name of paper credit? 466.
51. What is a bill of exchange, or draft; and who is the drawer of it, who the drawee, and who the payee? 466, 467.
52. Of what two sorts are bills of exchange; and what difference is there in law between them? 467.
53. What are promissory notes, or notes of hand, and for what sum at least must they be drawn? 467, 468.
54. Why is it usual in bills of exchange to express that the value thereof hath been received by the drawer? 468.
55. By what means may a bill of exchange or promissory note be assigned? 468, 469.
56. When may a bill of exchange be protested for non-acceptance; and when, both a bill and a promissory note, for non-payment? 469.
57. In case of such protests, what compensation is the drawer bound to make to the payee or endorsee; but what happens in the absence of such protests or their notification to the drawer? 469.
58. When a bill or a note is refused, how soon must it be demanded of the drawer? 470.
59. Upon whom may an endorsee call to discharge a bill or a note? 470.
Of Title by Bankruptcy.
1.Who may become a bankrupt; and who may not? 471, 473-477.
2. What privileges do the laws of bankruptcy confer on the creditors; and what on the debtor? 472.
3. By what eleven acts may a man become a bankrupt? 478, 479.
4. What are the ten proceedings on a commission of bankrupt? 480-484.
5. What if the bankrupt make default in either surrender of himself or conformity to the directions of the statutes of bankruptcy? 481.
6. What powers has any judge or justice of the peace over a bankrupt? 481.
7. What powers have the commissioners of bankruptcy? 481.
8. What if the bankrupt conceal or embezzle any effects to the amount of 20l., or withhold any books or writings with intent to defraud his creditors? 482.
9. What if it appear that his inability to pay his debts arose from some gross misconduct and negligence? 482.
10. After the time allowed to the bankrupt for such discovery is expired, to what shall any other person, voluntarily discovering any part of the bankrupt’s estate, be entitled; and what shall any trustee, wilfully concealing it, forfeit? 482.
11. Of what ratable amount is the bankrupt’s allowance? 483.
12. When shall not the bankrupt’s allowance or indemnity be given him? 484.
13. What is an act of insolvency? 484.
14. But as to what only are persons who have been once cleared by a bankruptcy or by an insolvent act indemnified in case they become bankrupts again? 484, 485.
15. By virtue of the statutes of bankruptcy, in whom are all the personal estate and effects of the bankrupt considered as vested by the act of bankruptcy? 485.
16. What is the meaning of the saying “Once a bankrupt and always a bankrupt”? 485, 486.
17. Who alone is not within the statute of bankrupts? 486.
18. But what is provided by the statute 19 Geo. II. c. 32 as to money paid by a bankrupt to a creditor, and by statute 1 Jac. I. c. 15 as to money paid by a debtor to a bankrupt? 486.
19. What acts can and cannot the assignees of a bankrupt do without the consent of the creditors? 486.
20. What is the duty of the assignees towards the creditors; and within what time shall the first dividend be made? 487.
21. What debts of a bankrupt have a priority to be paid; and what shall not be postponed or set aside? 487, 488.
22. Within what time shall a second and final dividend be made; and if any surplus remain after paying every creditor his full debt to whom shall it be given? 488.
Of Title by Testament and Administration.
1.What is a testament, and what an administration? 490.
2. What were the reasonable parts in a man’s chattels of the wife and children? 492.
3. What part of his chattels may a man now devise? 492, 493.
4. When is a man said to die intestate? 494.
5. To whom did the goods of intestates anciently belong; and to whom were they granted? 494.
6. What is the origin of the right of the church to the probate of wills and to the administration of intestate’s property? 494-496, 509, 510.
7. Who is the intestate’s administrator? 496.
8. Upon what three accounts are persons prohibited, by law or custom, from making a will? 497.
9. Who are to be reckoned in the first species? 497.
10. Are prisoners, captives, and the like absolutely intestable? 497.
11. In what cases may a feme-covert make a testament of chattels? 498.
12. Who is an exception to the general rule that a feme-covert cannot make a testament of chattels? 498.
13. What if a feme-sole make her will and afterwards marry? 499.
14. Who are persons incapable of making testaments on account of their criminal conduct? 499.
15. Into what two sorts are testaments divided? 500.
16. What is a codicil; and of what two sorts? 500.
17. Under what three restrictions has the statute of frauds, 29 Car. II. c. 3, laid nuncupative wills and codicils? 500, 501.
18. What witness of their publication do written testaments of chattels need? 501.
19. What if there be many testaments of different dates; and what effect has the republication of a former will upon one of a later date? 502.
20. In what three ways may testaments be avoided? 502.
21. What if a man who hath made a will marry and have a child? 502.
22. Is it necessary to leave the heir a shilling; or, if the heir or next of kin be totally omitted in the will, does the law admit a querela inofficiosi to set it aside? 503.
23. What is an executor, and who may be one? 503.
24. What must be done if the executor be not seventeen years of age, or be out of the realm when a suit is commenced in the ecclesiastical court touching the validity of the will? 503.
25. What if the testator name no, or incapable, executors, or if the executors named refuse to act? 503, 504.
26. What if the deceased die wholly intestate without making either will or executors? 504.
27. In granting letters of administration pursuant to the statutes 31 Edw. III. c. 11 and 21 Hen. VIII. c. 5, by what seven rules is the ordinary bound? 504, 505.
28. Who may administer to a bastard? 505, 506.
29. If the executor of A. die, who is A.’s executor? 506.
30. Is it the same with regard to A.’s administrator? 506.
31. What is an administrator de bonis n n? 506.
32. What is the difference between the offices and duties of executors and those of administrators? 507.
33. Who is an executor de son tort; and how shall he be treated? 507.
34. What are the seven powers and duties of a rightful executor or administrator? 508, 510-512, 514, 515.
35. In what two ways is a will proved; and what is styled the probate? 508.
36. When must the will be proved before the ordinary of the jurisdiction, and when before the metropolitan of the province by way of special prerogative? 508, 509.
37. If there be two or more executors or administrators, is a sale or release by one of them good against the rest? 510.
38. What are called assets? 510.
39. In what order of priority must the deceased’s debts be paid? 511.
40. What if a creditor constitute his debtor his executor? 512.
41. May an executor or administrator give himself the preference in the payment of the deceased’s debts and legacies? 511, 512.
42. What is a legacy, and what is necessary to its perfection? 512.
43. In case of a deficiency of assets, what legacies must abate, and how? 512, 513.
44. What is a lapsed legacy; and to whom does it lapse? 513.
45. What is a contingent and what a vested legacy? 513.
46. But what if such legacies be charged upon real estate? 513.
47. When do legacies carry interest? 513, 514.
48. What is a donation causa mortis? 514.
49. When shall the residuum go to the executor, and when to the next of kin? 514, 515.
50. How do the statutes 22 & 23 Car. II. c. 10, explained by 29 Car. II. c. 30 and 1 Jac. II. c. 17, distribute the surplusage of intestate’s estates? 515, 516.
51. But what are the customs of the city of London and the province of York as to the distribution of intestate’s effects which are expressly reserved by the statute of distributions? 518, 519.
52. What is the widow’s chamber by these customs? 518.
53. What was the dead man’s part? 518.
54. In what two principal points do the customs of London and York considerably differ? 519.
OF PRIVATE WRONGS.
Of the Redress of Private Wrongs by the mere Act of the Parties.
1.What are private wrongs as distinguished from public wrongs; and why are the former frequently termed civil injuries, and the latter crimes and misdemeanours? 2.
2. How is the redress of private wrongs principally to be sought? 2, 3.
3. Into what three species may the redress of private wrongs be distributed? 3.
4. Of what two sorts is that redress of private wrongs which is obtained by the mere act of the parties? 3.
5. Of what six species is that redress of private wrongs which arises from the sole act of the injured party? 3-6, 15.
6. What is a distress, districtio; and for what four injuries may a distress be taken? 6, 7.
7. What are cattle damage-feasant? 7.
8. What six species of things cannot be distrained? 7-10.
9. What are cattle levant and couchant elevan tes et cubantes? 9.
10. When, where, and how must all distresses be made; with what exceptions as to the time? 11.
11. In what cases may a second distress for the same duty be made? 11, 12.
12. What does the statute of Marlberge, 52 Hen. III. c. 4, enact as to unreasonable distress? 12.
13. How must a distress be disposed of; and when may it be rescued by its owner? 12.
14. What is a pound (parcus); and of what four kinds? 12.
15. What is the difference in the effect between impounding a live distress in a common pound-overt and in a special pound-over? 13.
16. What if the beasts are put in a pound-covert; or if a distress of dead chattels be not put in one? 13.
17. How long must beasts taken damage-feasant and distresses for suit or services remain impounded? 13.
18. What is to replevy (replegiare)? 13.
19. When is the distress salable for a debt due to the crown for an amercement to the lord, and for statute distresses; and when in all cases of distress for rent? 14.
20. What has the statute 11 Geo. II. c. 19 provided in case of any unlawful act done in taking a distress? 15.
21. Are those who are entitled to that redress of private wrongs which arises from the sole act of the injured party debarred of their redress by suit or action? 15.
22. Of what two species is that redress of private wrongs which arises from the joint act of all the parties together? 15.
23. What is accord; and what is its effect? 15, 16.
24. In what cases is tender of sufficient amends to the party injured a bar of all actions? 16.
25. What is arbitration; who is an umpire (imperator or impar); and what is an award? 16.
26. How may the right of real property pass by an award? 16.
27. In what case does the statute 9 & 10 W. III. c. 15 enact that all submissions of suit to arbitration or umpirage may be made rules of any of the king’s courts of record? 17.
Of Redress by the mere Operation of Law.
1.Of what two species is that redress of private wrongs which is effected by the mere operation of law? 18.
2. Why, when a creditor is executor or administrator, is he allowed to retain his own debt? 18, 19.
3. But in prejudice to whom can he not retain his own debt? 19.
4. What is remitter? 19, 20.
5. But what if the subsequent estate or right of possession be gained by a man’s own act and consent? 20.
6. What is the reason why this remedy of remitter to a right was allowed? 20.
7. But what, too, if the party have no remedy by action? 21.
Of Courts in General.
1.What is that redress of private wrongs wherein the act of the parties and the act of law co-operate? 22.
2. Is not the ordinary course of justice excluded by the extrajudicial remedy which the law allows in the several cases of redress by the act of the parties mentioned in a former chapter? 22, 23.
3. What in the cases of remedy by the mere operation of law? 23.
4. What is a general and indisputable rule where there is a legal right? 23.
5. What is a court defined to be? 23.
6. Whence are all courts of justice derived? 24.
7. What one distinction runs throughout all courts of justice? 24.
8. What constitutes a court of record; and by what shall its existence be tried? 24, 25.
9. What is a court not of record; what is the extent of its power, and by what shall its existence be tried? 25.
10. What three constituent parts must there be in every court; and what assistants is it usual for the superior courts to have? 25.
11. What is an attorney at law? 25.
12. Who cannot appear in court by attorney? 25.
13. What are the qualifications of attorneys? 26.
14. Of what two species or degrees are advocates or counsel? 26.
15. When may a barrister be called to the state and degree of a serjeant; and who are by custom always admitted into this venerable order as a qualification for their office? 27.
16. Who are his majesty’s counsel learned in the law, and his attorney and solicitor general; and what are their restrictions? 27.
17. To what does a patent of precedence entitle a barrister? 28.
18. Who are clients? 28.
19. Can a counsel maintain an action for his fees? 28.
20. For what spoken by him is a counsel not answerable? 29.
21. How are counsel guilty of deceit or collusion punishable by the statute Westminster 1, 3 Edw. I. c. 28? 29.
Of the Public Courts of Common Law and Equity.
1.Of what two natures are courts of justice with regard to their several species? 30.
2. Of what four sorts are public courts of justice? 30.
3. What are the ten general and public courts of common law and equity constituted for the redress of civil injuries, beginning with the lowest; and, of these ten, which are of a partial jurisdiction and confined to particular districts, and which are the superior courts, calculated for the administration of redress throughout the whole kingdom; which are courts of record, and which not, and which are courts of equity as well as law? 32-35, 37, 41, 44, 47, 48, 56, 57.
4. What is the court of piepoudre; who is the judge of it; what is its jurisdiction; and where lies an appeal from it? 32, 33.
5. What is the court-baron; by whom is it held as registrar; and of what two natures is it? 38.
6. Before whom, as judges, is the court-baron of the second or common-law nature held; what pleas may it hold; whither may its proceedings be removed; and where lies an appeal from it? 34.
7. What is a hundred court; who are its judges and registrar; whither may its proceedings be removed; and where lies an appeal from it? 34, 35.
8. What is the county court; what pleas may it hold; who are its real judges, and who its ministerial officer; whither may its proceedings be removed; and where lies an appeal from it? 36, 37.
9. What is the origin of the court of common pleas or common bench; and by what was the court rendered fixed and stationary where? 38, 39.
10. What benefit did the common law itself derive from this establishment of its principal court? 39.
11. Into what two sorts are pleas or suits regularly divided; and of what court’s jurisdiction were each of these the proper objects? 40.
12. What are the judges of the court of common pleas; and when do they sit? 41.
13. Where lies an appeal from this court? 41.
14. What is the court of king’s bench; why is it so called, and what are its judges? 41.
15. For what reason is all process issuing out of this court in the king’s name returnable “ubicunque fuerimus in Anglia”? 41, 42.
16. What is the jurisdiction of this court; and by what fiction can it hold plea of all personal actions whatever? 42-44.
17. Where lies an appeal from this court? 44.
18. What is the court of exchequer (scaccharium); why is it so called; and what is its rank? 44.
19. Of what two divisions does it consist; and what are the two subdivisions of the second division? 44.
20. Where and before whom is the exchequer court of equity held; and what is the primary and original business of this court? 45.
21. But by what fiction, with the help of the common-law part of this court’s jurisdiction, may all kinds of personal suits be prosecuted in it? 45, 46.
22. Where lies an appeal from the equity side of this court; and where from the common law? 46.
23. What is the court of chancery (cancellaria); why is it so called; and how is the office of chancellor or lord-keeper created? 47.
24. What is the chancellor virtute officii; and what are his powers and authorities? 47, 48.
25. Of what two distinct tribunals does the court of chancery consist? 48.
26. What is the jurisdiction of the ordinary legal court in chancery; what if any fact be disputed between the parties; and where lies an appeal from its judgments in law? 48, 49.
27. What writs issue from the common-law court in chancery; and what is the origin of the hanaper and petty-bag offices? 49.
28. What is the origin of the separate jurisdiction of the chancery as a court of equity? 51-53.
29. How was that notable dispute decided which was set on foot by Sir Edward Coke when chief justice of the court of king’s bench, whether a court of equity could give relief after or against a judgment at common law? 54.
30. What chancellor first built a system of equitable jurisprudence and jurisdiction upon wide and rational foundations, and occasioned the power and business of the court of chancery to increase to its present amazing degree? 55.
31. Where lies an appeal from this court of equity in chancery; and what two differences are there between appeals from a court of equity and writs of error from a court of law? 55.
32. What is the nature of all the branches of the court of exchequer chamber; and of whom does it now consist? 55, 56.
33. Where lies an appeal from this court? 56.
34. What is the nature of the house of peers as a court of judicature; and where lies an appeal from it? 56.
35. What is an eleventh species of courts of general jurisdiction and use which are derived out of, and act as collateral auxiliaries to, the foregoing? 57.
36. Of what are these courts composed; how often in the year are they instituted, and for what purpose? 57, 58.
37. By virtue of what five several authorities do the judges upon their circuits now sit? 58, 59.
38. What is a commission of assize? 59.
39. What is a commission of nisi prius? 59.
Of Courts Ecclesiastical, Military, and Maritime.
1.Who first separated the ecclesiastical court from the civil? 62.
2. What are the seven principal courts of ecclesiastical jurisdiction, or, as they are often styled, courts Christian, (curiæ Christianitatis,) beginning with the lowest? 64-67.
3. What is the jurisdiction of the archdeacon’s court; before whom may it be held; and where lies an appeal from it? 64.
4. What is the jurisdiction of the consistory court of every diocesan bishop; where is it held; who is the judge; and where lies an appeal from it? 64.
5. What is the court of arches; why is its judge called dean of the arches; what is now the juristion of the court; and where lies an appeal from it? 64, 65.
6. What is the court of peculiars; what is its jurisdiction; and where lies an appeal from it? 65.
7. What is the jurisdiction of the prerogative court; by whom is the judge appointed; and where lies an appeal from it? 65, 66.
8. What is the nature of the court of delegates (judices delegati); and by whom are they appointed? 66, 67.
9. What is a commission of review? 67.
10. What is the only court military known to and established by the permanent laws of the land; before whom is it held; of what has it cognizance; and where lies an appeal from it? 68.
11. What are the three maritime courts; and what are their power and jurisdiction? 68, 69.
12. Before whom is the court of admiralty held; according to the method of what law are its proceedings; and where is it held? 69.
13. Where lies an appeal from the ordinary sentences of the admiralty judge; but, in cases of prize vessels taken in the time of war in any part of the world and condemned in any of the courts of admiralty or vice-admiralty as lawful prize, where lies an appeal? 69.
Of Courts of a Special Jurisdiction.
1.What are the ten courts whose jurisdiction is private and special, confined to particular spots, or instituted only to redress particular injuries? 71, 73-75, 77-80, 83.
2. What were the forest courts? 71-73.
3. By whom is the court of commissioners of sewers appointed; what are their jurisdiction and power; and under whose control are they? 73, 74.
4. What are the power and jurisdiction of the court of policies of assurance; by whom may it be appointed; of whom does it consist; and why has it fallen into disuse? 74, 75.
5. What is the origin of the court of the marshalsea and the palace-court at Westminster; how were both revived by king Charles I.; what is their present jurisdiction; how may their proceedings be removed; and where lies an appeal from them? 75, 76.
6. What are the courts of the principality of Wales; by whom are the judges of session appointed; what is their jurisdiction; and where lies an appeal from their judgments? 77.
7. What writs of process of the king’s courts at Westminster run into the principality of Wales; and when may actions between Welsh parties be brought in the English courts, and where may they be tried? 77, 78.
8. What are the nature and jurisdiction of the court of the duchy-chamber of Lancaster; and before whom may it be held? 78.
9. What is the jurisdiction of the courts appertaining to the counties palatine of Chester, Lancaster, and Durham, and the royal franchise of Ely; under whose government are these franchises; and by virtue of what do the judges of assize sit therein? 78, 79.
10. What franchises and exclusive jurisdiction (before whom) have the cinque ports of Dover, Sandwich, Romney, Hastings, and Hythe, to which Winchelsey and Rye have been added; and what is the progress of an appeal from them? 79.
11. Why may all prerogative writs issue to these exempt jurisdictions? 79.
12. What are the stannary courts in Devonshire and Cornwall; and before whom are they held? 79.
13. What are the privileges of tinners; and what is the progress of appeal from decisions in a stannary court? 80.
14. What is the origin of the several courts within the city of London and other cities, boroughs, and corporations, held by prescription, charter, or act of parliament; under what superintendency are they; and according to what law must their proceedings be? 80, 81.
15. What are the nature and constitution of the courts of requests or courts of conscience; and wherein do their proceedings vary from the course of the common law? 81.
16. What does the commentator recommend in preference to courts of requests; and why? 82, 83.
17. In what one instance have the proceedings in the county and hundred courts been again revived by the statute 23 Geo. III. c. 33; and what does it enact? 83.
18. What are the jurisdiction and system of jurisprudence of the chancellor’s courts in the two universities of England; and why, in the reign of Queen Elizabeth, was an act of parliament obtained confirming all the charters of the two universities? 83-85.
19. Who is the judge of the chancellor’s court; and what is the progress of an appeal from its decisions? 85.
Of the Cognizance of Private Wrongs.
1.Of what three classes are wrongs or injuries cognizable by the ecclesiastical court, not for the sake of the party injuring, (pro salute animæ,) but for the sake of the party injured? 87, 88.
2. From what five principal injuries do the pecuniary causes cognizable in the ecclesiastical court arise? 88-92.
3. When will a suit for tithes lie in ecclesiastical courts? 88, 89.
4. What, by the ancient law and by the statute 2 & 3 Edw. VI. c. 13, is the penalty in case any person shall carry off his predial tithes before the tenth part be duly set forth, or agreement be made with the proprietor, or shall withdraw his tithes of the same, or shall hinder the proprietor of the tithes, or his deputy, from viewing or carrying them away? 89.
5. But how may what tithes and dues be recovered by statutes 7 W. III. c. 6 and 8 W. III. c. 34? 89, 90.
6. When will a suit for fees lie in the ecclesiastical courts? 90.
7. When has a curate a remedy for his salary in the ecclesiastical court? 90.
8. What is spoliation, and when is it cognizable in the spiritual court? 90, 91.
9. When will the temporal courts interfere with the spiritual in causes matrimonial? 93.
10. What are the five principal matrimonial causes now cognizable in the ecclesiastical courts? 93, 94.
11. When does the ecclesiastical law decree a divorce à mensâ et thoro, and when à vinculo matrimonu? 94.
12. What are the three principal testamentary causes belonging to the ecclesiastical jurisdiction? 98.
13. In what cases of testamentary causes do the courts of equity exercise a concurrent jurisdiction with the ecclesiastical courts; and why? 98.
14. According to the practice of what laws are the proceedings in the ecclesiastical courts regulated? 100.
15. When will the courts of common law aware a prohibition against the proceedings in the spiritual court? 100.
16. What is the ordinary course of proceeding in the ecclesiastical courts? 100, 101.
17. What process have the ecclesiastical courts to enforce their sentences? 101.
18. What are the two sorts of excommunication? 101.
19. What if the judge of any spiritual court excommunicate a man for a cause of which he hath not the legal cognizance? 101.
20. What acts is an excommunicated person disabled from doing? 102.
21. What are writs of significavit or de excommunicato capiendo and de excommunicato deliberando; when and whence do they issue; and what are their effects? 102.
22. What assistance is given by the statutes 27 Hen. VIII. c. 20 and 32 Hen. VIII. c. 7 in case of subtraction of tithes? 102, 103.
23. What is the jurisdiction of the court military or courts of chivalry declared to be by statute 13 Ric. II. c. 2; and by what fiction of common law has it been still more narrowly confined? 103.
24. Of what two civil injuries is it cognizable? 103, 104.
25. Will an action for words lie; and what remedy can the court military give as a court of honour? 104.
26. What were the proceedings of the court military as a court of heraldry and precedence; and why has it fallen into disuse? 105.
27. What deeds and records of the heralds are received in a court of justice? 105.
28. How has the house of lords provided for the descent of peers? 106.
29. Have the courts maritime cognizance of any thing done by water within the body of any county, of wrecks, of things flotsam, jetsam, and ligan, of seaman’s wages contracted for on land, of charter parties or ship covenants, or of contracts made upon sea to be performed in England; and what is the general rule as to their jurisdiction? 106, 107.
30. By what fiction of common law has the cognizance of suits been drawn from the courts of admiralty to those of Westminster hall? 107.
31. What if a question that is proper for the cognizance of the court of admiralty should arise in a cause of which that court hath not the original jurisdiction; or if a question properly determinable by the common law should arise in a cause of which the court of admiralty hath the original jurisdiction? 108.
32. Upon what laws are the proceedings of the courts of admiralty founded? 108.
33. What are their process and power? 108, 109.
34. What injuries are cognizable by the courts of common law? 109.
35. What is the remedy when justice is either refused or delayed by an inferior court that has proper cognizance of the cause? 109.
36. What is a writ of procedendo ad judicium; and when and whence does it issue? 109, 110.
37. What is a writ of mandamus; and when and whence does it issue? 110, 111.
38. What is a peremptory mandamus; when does it issue; and what if a false return should be made to it? 111.
39. What is the remedy when an inferior court encroaches on its jurisdiction or calls one coram non judice to answer in a court that has no legal cognizance of the cause? 111.
40. What is a writ of prohibition; and when, whence, and whither does it issue? 112.
41. What if the judge or the party shall proceed after such prohibition? 113.
42. What is the usual form of proceeding upon prohibitions? 113.
43. When is the party applying for the prohibition directed to declare in prohibition; and what is the nature and effect of that proceeding? 113, 114.
44. When is a writ of consultation awarded upon that proceeding; why is it so called; and what is its effect? 114.
45. What if the fact upon which the prohibition is granted be afterwards falsified? 114.
46. In what other case is the writ of consultation frequently granted? 114.
Of Wrongs and their Remedies respecting the Rights of Persons.
1.What two things may be considered in treating of the cognizance of injuries by the courts of common law? 115.
2. What is the plain, natural remedy for every species of wrong between subject and subject? 116.
3. In what two ways may this remedy be effected? 116.
4. What are the instruments whereby this remedy is obtained? 116.
5. Into what three kinds are the suits, from the subject of them, distinguished? 117.
6. Of what two sorts are personal actions; and upon what is each said to be founded? 117.
7. What are real actions; and why and for what are they now pretty generally laid aside in practice? 118.
8. What are mixed actions? 118.
9. What distinction into two kinds runs through all civil injuries; the latter species why savouring of the criminal kind, and how, therefore, in strictness of law, liable to a double punishment? 118, 119.
10. May we make the same division of injuries that we did of rights in a former book? 119.
11. Into what two kinds, may we remember, were the rights of persons distributed; and what three were the absolute rights of each individual defined to be; and must the wrongs or injuries affecting them be of a correspondent nature? 119.
12. Of what five kinds are the injuries which affect the personal security of individuals? 119.
13. By what five means may the two species of injuries affecting the limbs or bodies of individuals be committed? 120, 121.
14. What is necessary to complete the injury of threat? 120.
15. What constitutes assault? 120.
16. What constitutes battery; and when is battery justifiable? 120.
17. What is the plea of son assault demesne? 120.
18. What is the plea of molliter manus imposuii, and when may it be pleaded in justification? 121.
19. What is mayhem? 121.
20. What are the members the loss of which constitutes mayhem; and what are not? 121.
21. For which of these five injuries may an indictment be brought as well as an action; and why? 121.
22. What are the injuries affecting a man’s health; and, these being injuries unaccompanied by force, what is the remedy for them? 122.
23. What is the special action of trespass or transgression upon the case; and why is it so called? 122.
24. When is it a settled distinction that the remedy shall be by an action of trespass vi et armis, and when by an action of trespass upon the case? 123.
25. Of what three kinds are injuries affecting a man’s reputation or good name? 123, 125, 126.
26. What words are actionable without proving any particular damage to have happened, but merely upon the probability that it might happen? 123, 124.
27. What is scandalum magnatum; how is it redressed; and, if tending to scandalize whom, are words reputed more highly injurious than ordinary? 123, 124.
28. What is called laying an action for words with a per quod? 124.
29. When are scandals cognizable only in the ecclesiastical court? 124, 125.
30. What words are not actionable? 124, 125.
31. When will no action for words he, even though special damage have ensued; and is it damnum absque injuriâ? 125.
32. What are libels; and why are there what two remedies for libels? 125.
33. In the remedy by action on the case for libel, may the defendant justify the truth of the facts and show that the plaintiff has received no injury at all? 125, 126.
34. What is it necessary for the plaintiff to show in actions for libels by signs and pictures? 126.
35. In the case of injuries affecting a man’s reputation by malicious prosecutions, when does the law give him the choice of what two remedies? 126.
36. By what injury is the right of personal liberty violated? 127.
37. What two points are requisite to constitute the injury of false imprisonment? 127, 128.
38. Of what two sorts is the remedy for false imprisonment? 128.
39. What are the four means of removing the actual injury of false imprisonment? 128.
40. What is the writ of mainprize, manucaptio; when is it generally granted, and when specially; and how do mainpernors differ from bail? 128.
41. What is the writ de odio et atia; what does magna carta say of it; by what was it abolished; and by what is Sir Edward Coke of opinion that it was revived? 128, 129.
42. What is the writ de homine replegiando; and when does a process issue called a capias in withernam; and what is its effect? 129.
43. But what hath almost entirely antiquated these three remedies of false imprisonment; and to what hath it caused a general recourse to be had in behalf of persons thus aggrieved? 129.
44. What four kinds of the writ of habeas corpus are made use of by the courts at Westminster for removing prisoners from one court to another in the more easy administration of justice? 129, 130.
45. What is the habeas corpus ad respondendum? 129.
46. What is that ad satisfaciendum? 129.
47. What are those ad prosequendum, testificandum, deliberandum, &c.? 129.
48. What is the common writ ad faciendum et recipiendum; and why is the writ frequently denominated an habeas corpus cum causa? 129, 130.
49. Upon what is this writ grantable, and what is its effect? 130.
50. But what is ordered by the statute 1 & 2 P. and M. c. 13 in order to prevent the surreptitious discharge of prisoners? 130.
51. And what is enacted by statutes 21 Jac. I. c. 23, 12 Geo. I. c. 29, and 19 Geo. III. c. 70, in order to avoid vexatious delays by removal of frivolous causes? 130, 131.
52. But what is the great and efficacious writ in all manner of illegal confinement; what does it direct; and when, whence, and whither does it issue? 131, 132.
53. How must this writ be obtained; and why? 132, 133.
54. When is this writ a writ of right in whom against whom? 133.
55. What is it absolutely necessary to express upon every commitment? 134.
56. What does the statute 16 Car. I. c. 10, 8 enact as to the writ of habeas corpus? 135.
57. What does the famous habeas corpus act, 31 Car. II. c. 2, enact; but to what commitments only does it extend? 136, 137.
58. What if the writ be not immediately obeyed? 137.
59. What is the satisfactory remedy for the injury of false imprisonment? 138.
60. What four relations of persons do injuries which affect the relative rights of individuals particularly affect? 139.
61. What are the three principal injuries which may be offered to a husband? 139.
62. What does the law always suppose in case of abduction; and why? 139.
63. What two species of remedy has the husband for this injury? 139.
64. What satisfaction does the law give a husband for the civil injury of adultery? 139.
65. By what circumstances are the damages recovered for this injury increased or diminished? 140.
66. In what cases must marriage in fact be proved? 140.
67. When does the law give the husband a separate remedy by an action of trespass per quod consortium amisit? 140.
68. Of what two kinds were injuries that might be offered to persons considered in the relations of parent or guardian; and, provided either be still an injury, what is the remedy? 140, 141.
69. But what more speedy and summary method of redressing all complaints relative to wards and guardians hath of late obtained; and what is expressly provided by statute 12 Car. II. c. 24 as to testamentary guardians? 141, 142.
70. What two species of injuries are incident to the relation between master and servant, and the rights accruing therefrom? 142.
71. Who have what two remedies in case on man beat or confine another’s servant? 142.
Of Injuries to Personal Property.
1.Of what two natures are the injuries which may be offered to the rights of property? 144.
2. What are the two sorts of injuries which may be offered to the rights of personal property? 145.
3. To what two species of injuries are the rights of personal property in possession liable? 145.
4. Into what two branches is dispossession divisible? 145.
5. Of what two kinds is the remedy which the law has given for an unlawful taking of goods? 145, 146.
6. By what two species of action is the actual specific possession of the identical personal chattel restored to the proper owner? 146.
7. Why may this be done in the case of distress more than in any other? 146.
8. What are the two species of rescous and their several remedies? 146.
9. What is an action of replevin; and what do the statutes of Marlberge and of 1 P. and M. c. 12 direct the sheriff to do concerning replevin? 147.
10. In pursuance of the statute of Westminster 2, 13 Edw. I. c. 2, for what two things is security to be given by the party replevying to the sheriff or his deputy; and what does the statute 11 Geo. II. c. 19 require besides of the officer granting a replevin on a distress for rent? 147, 148.
11. But what if the distrainor claim any property in the goods so taken and to keep them by a kind of personal remitter? 148.
12. And what if the sheriff return that the goods or beasts are eloigned, elongata, carried to a distance to places to him unknown? 149.
13. When can goods taken in withernam be replevied? 149.
14. Upon action of replevin brought, when does the distrainor or defendant make avowry, and when cognizance? 150.
15. What if the cause be determined for the plaintiff; and what if for the defendant; and what does the statute of Westminster 3, c. 2 enact in this latter event? 150.
16. When shall the plaintiff have a writ of second deliverance and the defendant a writ of return irreplevisable; and what are they? 150.
17. What does the statute 17 Car. II. c. 7 direct if the plaintiff in an action of replevin be nonsuit before issue joined, or if judgment be given against him on demurrer; and what if the nonsuit be after issue joined, or if a verdict be against the plaintiff? 150, 151.
18. But what if, pending a replevin for a former distress, a man distrain again for the same rent or service? 151.
19. What is the remedy if one man take the goods of another out of his possession; or what other remedy may the party have, at his choice, if the taking be without force? 151.
20. Of what two kinds is the remedy for the unlawful detaining of goods lawfully taken? 151, 152.
21. By what two species of action may the first of these kinds of remedy be sought? 151, 152.
22. What is necessary in an action of detinue; and for what, therefore, cannot such action be brought? 152.
23. What four points are necessary to ground an action of detinue? 152.
24. But what disadvantage attends this action; and whence did it arise? 152.
25. What was the action of trover and conversion in its original; and why by fiction of law was its use enlarged to what extent? 153.
26. What shall be recovered by an action of trover and conversion? 153.
27. What are the two remedies for damage that may be offered to things personal while in the possession of the owner? 153, 154.
28. From what do all injuries affecting the right of things personal in action arise? 154.
29. What is the twofold division of contracts? 154.
30. What three distinct species do express contracts include? 154.
31. What is the legal acceptation of debt? 154.
32. What are the two species of remedy for debt; and when only will the first lie? 154, 155.
33. For what two reasons is action of debt seldom brought but upon special contracts under seal? 155.
34. Wherein does an action on the case, or what is called an indebitatus assumpsit, differ from an action of debt? 155, 156.
35. But what, in an action of debt, if the defendant can show that he has discharged any part of it? 156.
36. When is the form of the writ of debt in the debet as well as the detinet; and when in the detinet only? 156.
37. What is a covenant; and what is the remedy for a breach of one? 156, 157.
38. What is a covenant real; and what is the remedy for a breach of one? 157.
39. What does the statute 32 Hen. VIII. c. 34 give to the grantee or assignee of a reversion? 158.
40. What is a promise; and what is the remedy for a breach of one? 158.
41. In the case of a simple contract debt, what is it that gives the creditor his action on the case instead of being driven to an action of debt? 159.
42. In what five cases does the statute of frauds and perjuries, 29 Car. II. c. 3, enact that no verbal promise shall be sufficient to ground an action upon, but at least some note or memorandum of it shall be made in writing and signed by the party to be charged therewith? 159.
43. From what two circumstances do implied contracts arise? 159, 162.
44. What is every man bound and hath virtually agreed to do by the fundamental constitution of government, to which every man is a contracting party? 160.
45. If a plaintiff have once obtained a judgment against a defendant for a certain sum and neglect to take out execution thereupon, what action may he afterwards bring upon this judgment, and to what proof shall he be put? 160.
46. How does the law look upon a forfeiture imposed by the by-laws and private ordinances of a corporation upon any that belong to the body, or an amercement set in a court-leet or court-baron upon any of the suitors to the court? 161.
47. What forfeitures do the statute of Winchester and the statute 9 Geo. I. c. 22, commonly called the black act, impose upon the inhabitants of hundreds? 161.
48. What is called a popular action, and what a qui tam; and what does the statute 4 Hen. VII. c. 20 enact in order to prevent the practice of offenders procuring their own friends to begin a qui tam action that may forestall and prevent other actions? 161.
49. What six classes of implied contracts, or assumpsits, arise from the general implication and intendment of the courts of judicature, that every man hath engaged to perform what his justice or duty requires? 162-165.
50. What is a writ of account de computato; and against whom is it extended by statute 4 Anne, c. 16? 164.
51. When is a sheriff or gaoler liable to an action on the case; and when of debt? 165.
52. But in what case does the law imply no general undertaking to perform an office with integrity, diligence, and skill? 166.
53. What is an action of deceit, (or on the case in nature of a writ of deceit;) and when may it be brought? *165, *166.
Of Injuries to Real Property; and, first, of Dispossession, or Ouster of the Freehold.
1.What are the six principal injuries affecting real rights? 167.
2. What is ouster; and of what two kinds may it be? 167.
3. By what five methods is ouster of the freehold effected? 167.
4. What is an abatement? 167, 168.
5. What is an intrusion; and wherein does it differ from an abatement? 169.
6. What is a disseisin; and wherein does it differ from the two former species of injury? 169.
7. How must disseisin of things corporeal be effected? 170.
8. What is disseisin of things incorporeal? 170.
9. With regard to freehold rent in particular, what five methods of working a disseisin thereof do our ancient law-books mention? 170.
10. But when only are all these disseisins of hereditaments incorporeal such? 170.
11. May not something of this kind be done, even in corporeal hereditaments, to entitle a man to the more easy and commodious remedy of an assise of novel disseisin, instead of being driven to the more tedious process of a writ of entry? 170, 171.
12. Wherein do the remaining two species of injury by ouster differ from the former three? 171.
13. What is a discontinuance? 171, 172.
14. What did the statute 32 Hen. VIII. c. 28 provide as to a discontinuance of the wife’s estate by the alienation of the husband; and what is declared by the statutes 1 Eliz. c. 19 and 13 Eliz. c. 10 as to discontinuance by the alienation of a sole corporation? 172.
15. What is a deforcement as contradistinguished from the former four species of injury by ouster? 172-174.
16. What are the remedies for the several species of injury by ouster? 174.
17. What is the first method whereby these remedies may be obtained, or that where the tenant or occupier of the land hath gained only a mere possession and no apparent shadow of right? 174.
18. How must entry be made; and what are making claim and continual claim? 174, 175.
19. Upon what three only of the five species of ouster does the remedy by entry take place? 175.
20. What remedy has a man for ouster by a tenant by sufferance? 175, 176.
21. How may the right of entry be tolled and why? 176, 177.
22. Yet what exceptions are there to this rule of tolling the right of entry; and how is it still further narrowed by the statute 32 Hen. VIII. c. 33? 177, 178.
23. What is enacted, on the other hand, by the statute of limitations, 21 Jac. I. c. 16, and by statute 4 & 5 Anne, c. 16? 178.
24. What is the remedy upon an ouster by the discontinuance of tenant in tail, or in case of deforcement; and why? 178, 179.
25. What if one turn or keep another out of possession forcibly; and what does the statute 8 Hen. VI. c. 9 enact in such case, or if any alienation be made to defraud the possessor of his right? 179.
26. What are the two remedies which are in use where the tenant or occupier hath in him not only a bare possession, but also an apparent right of possession? 179, 180.
27. If a recovery be had against the dispossessor in the actions by writ of entry or an assise, may be afterwards exert his legal claim to the right of ownership? 180.
28. What is a writ of entry; to whom is it directed; and what does it require? 180, 181.
29. Against whom must the writ of entry always be brought; and what are the degrees, called the per, the per and cui, and the post, within which writs of entry are brought? 182, 182.
30. To what cases of ouster is the remedy by writ of entry inapplicable? 181, 183.
31. What is the origin of a writ of assise; wherein does it differ from a writ of entry; and can recourse be had to the one action to set aside the decision of the other? 184, 185.
32. To what two species of injury by ouster is the remedy by writ of assise only applicable? 185.
33. What were an assise of mort d’ancestor, and writs of ayle, or de avo, of besayle, or de proavo, of cosinage, or de consanguineo, and of nuper obiit; beyond what degrees collateral and lineal was a man not allowed to have any of these actions; and why can they not now be brought? 185-187.
34. What is an assise of novel (or recent) disseisin; and wherein does it differ from an assise of mort d’ancestor? 187.
35. If the jury of recognitors, in an assise of novel disseisin, find an actual seisin in the demandant, what shall he have? 187.
36. If a person disseised recover seisin of the land again by assises of novel disseisin and mort d’ancestor, and be again disseised of the same tenements by the same disseisor, what is enacted by the statutes of Merton, Marlberge, and Westminster 2? 188.
37. Beyond what period does the present statute of limitations enact that no person shall bring any possessory action to recover possession of lands, and customary and prescriptive rents, suits, and services, merely upon the seisin or dispossession of his ancestors? 189.
38. Had it not been for the doctrine of remitter, how might the tenant by remitter have been turned out of possession? 190.
39. What is the great and final remedy whereby the right of property may be asserted against the right of possession? 191.
40. In what four cases is this remedy, or that by such other writs as are said to be of the same nature, principally applied? 191.
41. What is the remedy upon an alienation by tenant in tail whereby the estate-tail is discontinued and the remainder or reversion is, by failure of the particular estate, displaced and turned into a mere right? 191.
42. Into what three species is the writ of formedon (secundum forman doni) distinguished; and where does each species lie? 192.
43. What, by statute 21 Jac. I. c. 16, is the time of limitation in a formedon? 192, 193.
44. What is the remedy if the owners of a particular estate be barred of the right of possession by a recovery had against them through their default or non-appearance in a possessory action? 193.
45. What is the remedy in case the right of possession be barred by a recovery upon the merits, in a possessory action, or by the statute of limitations? 193.
46. Of what estate only doth a mere writ of right lie; and what if other actions are or have been brought to recover the same estate? 193.
47. In bar of what may a recovery had in this action be pleaded? 194.
48. But are there not some cases when writs in the nature of writs of right do not demand the fee-simple; and are there not others where the mere writ of right alone is not applicable to every case of a claim of lands in fee-simple? 194, 195.
49. Where must the general writ of right be brought; and whither may it be removed? 195.
50. What, by statute 32 Hen. VIII. c. 2, is the limitation of a writ of right? 196.
51. But by what actions is the title of lands now usually tried? 197.
Of Dispossession or Ouster of Chattels Real.
1.Of what two kinds is ouster from chattels real? 198.
2. By what only is ouster of the first kind liable to happen; and what is the remedy for such ouster? 198.
3. By what only does ouster of the second kind happen; and what two remedies has the law provided for this injury? 199.
4. Where doth a writ of ejectione firmæ, or action of trespass in ejectment, lie; and what shall be recovered by it? 199.
5. What is the present method by which the remedy by ejectment is converted into a method of trying titles to the freehold; who is called the casual ejector; and what if the tenant in possession do not within a limited time apply to the court to be admitted a defendant in his stead? 202, 203.
6. But, if the tenant in possession do apply to be made a defendant, upon what condition is it allowed him: and what is the lessor of the plaintiff then bound to do? 203, 204.
7. Yet, to prevent fraudulent recoveries of the possession by collusion with the tenant of the land, what is enacted by statute 11 Geo. II. c. 19? 204.
8. But what if the new defendants, whether landlord, or tenant, or both, after entering into the common rule, fail to appear at the trial and to confess lease, entry, and ouster? 204, 205.
9. The damages recovered in these actions being now merely nominal, what action lies in order to complete the remedy when the possession has been long detained from him who had the right to it? 205.
10. Why will not a writ of ejectment lie of incorporeal hereditaments; with what exception by the express purview of statute 32 Hen. VIII. c. 7? 206.
11. What does the statute 4 Geo. II. c. 28 enact as to landlords whose tenants are in arrear? 206.
12. Where doth the writ of quare ejecit infra terminum lie by the ancient law; and what shall be recovered by it? 207.
13. But why is this action fallen into disuse? 207.
1.What is trespass in its limited and confined sense? 209.
2. Why does the law call every trespass of this nature a breach of another’s close? 209, 210.
3. What is necessary in order to be able to maintain an action of trespass? 210, 211.
4. In case of trespass by cattle damage feasant, what remedy has the party injured? 211.
5. What is the action that lies in either of these cases of trespass committed upon another’s land; and when may damages be recovered? 211, 212.
6. What is called laying the action with a continuando; and when only can this be done? 212.
7. In what case is trespass justifiable; but in what shall a man be accounted a trespasser ab initio? 212-214.
8. What does the statute 11 Geo. II. c. 19 enact as to trespass by entry of the landlord to distrain? 213.
9. What is enacted by statutes 43 Eliz. c. 6 and 22 & 23 Car. II. c. 9, 136, in order to prevent trifling and vexatious actions of trespass; but what two exceptions more have been made to this rule by statutes 8 & 9 W. III. c. 11 and 4 & 5 W. and M. c. 23? 214, 215.
1.What is nuisance, nocumentum; and of what two kinds? 216.
2. Of what two kinds are private nuisances with regard to the species of hereditaments which they may affect? 216.
3. To what three may the nuisances which affect a man’s dwelling be reduced? 217.
4. What are nuisances to one’s lands? 217, 218.
5. What are nuisances with regard to other corporeal hereditaments? 218.
6. What are nuisances as to incorporeal hereditaments? 218, 219.
7. What two things are necessary in order to make out another person’s setting up a fair or market so near mine that he does me a prejudice to be a nuisance? 218, 219.
8. When shall a private person have a private satisfaction for damage by a public nuisance? 220.
9. What are the three remedies by suit for a private nuisance; and by whom only can the last two actions be brought? 220-222.
10. What if, after one verdict against him in an action on the case for damages for a nuisance, the defendant continue it? 220.
11. What is an assise of nuisance; and if the assise be found for the plaintiff, of what two things shall he have judgment? 221.
12. Does an assise of nuisance lie against the wrong-doer who levied or did the nuisance, or against the person to whom he may have aliened the tenement whereon the nuisance is situated? 221.
13. What is a writ quod permittat prosternere; and for and against whom does this writ extend its power? 221, 222.
14. Why are these two last actions fallen into disuse? 222.
1.What is waste, vastum; and of what two natures? 223.
2. What must those persons have who may be injured by waste? 223, 224.
3. What remedy has a person who has a freehold right of common of estovers if the owner of the wood demolish the whole wood; and what remedy has he if he have only a chattel interest in such common? 224.
4. But what is the most usual and important interest that is hurt by the commission of waste; and what remedy hath he who hath this interest in case of waste? 224, 225.
5. Yet why may a parson, vicar, archdeacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, have an action of waste? 225.
6. Of what two kinds is the redress for this injury of waste; and by what process is each kind obtained? 225.
7. What is a writ of estrepement; when may it now be had; by virtue of it what may the sheriff do if the writ be directed to him; and what is the consequence of its being directed to the tenant himself? 225-227.
8. Besides this preventive redress at common law, what will the courts of equity do upon bill exhibited therein? 227.
9. What is a writ of waste; and by and against whom may it be brought? 227.
10. Why is this action also maintainable, in pursuance of the statute Westminster 2, by one tenant in common or joint tenant of the inheritance against another who makes waste in the estate holden in common or joint tenancy, but not by one coparcener against another? 227.
11. Wherein is the action of waste a real action; and what shall be recovered if the waste be proved? 228.
12. What if the defendant in the action make default in appearance to the writ; and what if he suffer judgment to go against him by default or upon a nihil dicit? 228.
1.What is subtraction; and wherein does it differ from disseism? 230.
2. Of what two kinds are the rents or other services the subtraction of which varies the remedy in the same degree? 230.
3. What are duties and services usually issuing and arising ratione tenuræ; and what is the general remedy for their subtraction? 231.
4. What is called a distress infinite; and when may it be taken? 231.
5. What five other remedies for subtraction of rents or services are there? 231-233.
6. What is the effect of the writ de consuetudinibus et servitus? 232.
7. What is the writ of cessavit; and when, by the statute of Glocester, does it not lie? 232, 233.
8. What is a writ of right sur disclaimer? 233, 234.
9. But what two writs has the law given the tenant to remedy the oppression of the lord? 234.
10. What is the writ ne injuste vexes; and where does it lie? 234.
11. What is writ of mesne de medio; and where does it lie? 234.
12. What are services due by ancient custom and prescription; and what are the remedies for their subtraction? 235.
1.What is disturbance; and of what five sorts? 236.
2. When does disturbance of franchises happen; and what are its remedies? 236, 237.
3. What are the three species of disturbance of common? 237, 240.
4. When does the first species of disturbance of common happen; and what are its remedies? 237.
5. What is surcharging a common; and when can it happen? 237, 238.
6. What are the usual remedies for surcharging a common? 238.
7. What is a writ of admeasurement of pasture; where does it lie; who is entitled to it; to whom is it directed; and how must it be executed? 238, 239.
8. What if, after the admeasurement have ascertained the right, the same defendant surcharges the common again? 239.
9. What is disturbance of common by enclosure or obstruction; and what are its remedies? 240.
10. But are there not cases in which the lord may enclose and abridge the common? 240, 241.
11. When does disturbance of ways happen; how is this species of injury distinguished from that of nuisance; and what is the remedy for it? 241, 242.
12. What is disturbance of tenure; and who has what remedy for it? 242.
13. What is disturbance of patronage; and how was it distinguished at common law from another species of injury, called usurpation? 242, 243.
14. How is the title of usurpation now narrowed; and upon what foundation stands the law of it? 244.
15. What three persons may be disturbers of a right of advowson; and to whom has the law given what three remedies for the disturbance? 245.
16. When does an assise of darrein presentment, or last presentation, lie; but why is it fallen into disuse? 245, 246.
17. What is a jus patronatus; and when must it be awarded? 246, 247.
18. What is a duplex querela; and when may it be had? 247.
19. What is a writ of quare impedit; why, in the case of another presentation being set up, is it most advisable to bring it against the bishop, the patron, and the clerk too; and what does the writ command? 247, 248.
20. What is a writ of ne admittas; when may it be had; and what if the bishop, after the receipt of it, admit any person? 248.
21. In the proceedings upon a quare impedit, what must the plaintiff prove; and, upon failure of the plaintiff’s proof, what must the defendant? 249.
22. But if the right be found for the plaintiff, what three further points are also to be inquired? 249.
23. If it be found that the plaintiff hath the right, and hath commenced his action in due time, then what judgment shall he have? 249, 250.
24. But what if the church remain still void at the end of the suit? 250.
25. And what if the bishop do not admit the clerk upon this? 250.
26. What is the advantage of a writ of right of advowson over a writ of quare impedit? 250.
27. Why is there no limitation with regard to the time within which any actions touching advowsons are to be brought? 250, 251.
28. But is there not one species of presentation in which, by virtue of several acts of parliament, a remedy, to be sued for in the temporal courts, is put into the hands of the clerks presented as well as of the owners of the advowson; and with what powers particularly are the patrons clothed by the statutes of 12 Anne, st. 2, c. 14, 4, and 11 Geo. II. c. 17? 251, 252.
29. But when the clerk is in full possession of the benefice, what possessory remedies does the law give him; and when is he entitled to a special remedy called a writ of juris utrum, or the parson’s writ of right; but why is this remedy now of very little use? 252, 253.
Of Injuries proceeding from or affecting the Crown.
1.Of what two natures are injuries to which the crown is a party? 254.
2. What are the two common-law methods of obtaining possession or restitution from the crown of either real or personal property; and when may each be resorted to? 256, 257.
3. What are the six methods of redressing such injuries as the crown may receive from the subject? 257, 258, 260-262, 264.
4. What actions cannot the king maintain? 257.
5. What is an inquisition, or inquest of office? 258-260.
6. What remedy may the subject have in order to avoid the possession of the crown acquired by the finding of such office, besides his petition of right and his monstrans de droit? 260.
7. By whom may a writ of scire facias to repeal the king’s patent or grant be brought? 260, 261.
8. What is an information on behalf of the crown filed in the exchequer; and of what two sorts are the most usual informations? 261.
9. What is an information in rem? 262.
10. When does a writ of quo warranto lie in the king; and why has it given way to an information in the nature of such a writ? 262, 263.
11. To what is this proceeding now applied by virtue of the statute 9 Anne, c. 20? 264.
12. For what is the writ of mandamus made a most full and effectual remedy by the same statute, and by statute 11 Geo. I. c. 4; what are the proceedings on this writ; and what is a writ of restitution? 264, 265.
Of the Pursuit of Remedies by Action; and, first, of the Original Writ.
1.What are the eight general and orderly parts of a suit in the court of common pleas? 272.
2. What is an original, or original writ; where is it sued out; and what and where is its return? 273.
3. What is the foundation of suits below the value of forty shillings? 273.
4. Of what two sorts are original writs; and where is each sort in use? 274.
5. What is the security given by the plaintiff for prosecuting his claim? 274, 275.
6. What and when is the return of each sort of writ? 275.
7. What is the origin of the terms; and what are they? 275-277.
8. What are days in bank, dies in banco? 277.
9. What is called the essoign day of the term? 277, 278.
10. What is the quarto die post? 278.
1.What is the process; and to distinguish it from what two other kinds is it called original process? 279.
2. Of what nine sorts is original process? 279-284, 287, 288, 290, 291.
3. What is the summons; and how is it made? 279, 280.
4. What is the writ of attachment or pone; and when is this the first and immediate process? 280.
5. What is the writ of distringas, or distress infinite? 280.
6. What is the writ of capias ad respondendum; and upon what species of complaint may it now be had by several statutes? 281, 282.
7. For what reason does the practice of commencing almost all actions by bringing an original writ of trespass quare clausum fregit, vi et armis, still continue? 281, 282.
8. Why are writs subsequent to the original writ called judicial writs? 282.
9. Is this regular and orderly method of process now gone through; or what is now usual in practice? 282.
10. When does a writ testatum capias issue; and what if the action be brought in one county and the defendant live in another? 283.
11. But what if a defendant abscond and the plaintiff would proceed to an outlawry against him? 283.
12. What are alias and pluries writs, and writs of exigent, or exigi facias, and proclamation? 283, 284.
13. What is the effect of outlawry; what is the writ of capias utlegatum; and how may outlawry be reversed? 284.
14. What is the usual method of proceeding in the court of king’s bench? 285.
15. What is the origin of the process of bill of Middlesex; why is it so called; and what is it? 285.
16. When does a writ of latitat issue; and when may the bill of Middlesex in the court of king’s bench be treated like the capias ad respondendum in the court of common pleas? 286.
17. What is the first process in the court of exchequer; and what does it allege? 286.
18. What is now become the effect of the capias, latitat, &c.; what if the defendant appear upon them; and what if he do not? 287.
19. But what if the plaintiff will make affidavit that the cause of action amounts to ten pounds or upwards; and what is required by statute 13 Car. II. st. 2, c. 2? 287.
20. What was the origin of the clause of ac etiam in a bill of Middlesex and writ of capias; and what is it? 288.
21. When, in an arrest, may the bailiff justify breaking open the house in which the defendant is, in order to take him? 288.
22. Who are constantly privileged from arrests and from outlawries; and how must an appearance be enforced against such persons? 288, 289.
23. Who are pro tempore privileged from arrests; and where can no arrest be made? 289.
24. What is the king’s writ of protection; and what is enacted by the statute 25 Edw. III. st. 5, c. 19 as to the power of another creditor to proceed against a debtor of the king? 289, 290.
25. When may an arrest be made or process served upon a Sunday? 290.
26. What is special bail to the sheriff, or bail below; and what if the sheriff do not keep the defendant so as to be forthcoming in court? 290.
27. For what sum shall the sheriff take bail, by statute 12 Geo. I. c. 29? 290.
28. What is bail to the action, or above; and what may the plaintiff require of the sheriff if this be not put in? 290, 291.
29. Before whom must the bail above enter into what recognizance; and what if they be excepted to? 291.
30. How may special bail at all times be discharged? 292.
31. When is special bail only as of course required; and when by a judge’s order or the particular directions of the court? 292.
32. When only is special bail demandable in actions against heirs, executors, and administrators? 292.
1.What are pleadings; and of what four kinds? 293, 296, 299, 309.
2. What is the declaration, narratio, or count? 293.
3. In what actions must the plaintiff lay his declaration, or declare his injury to have happened, in the very county and place where it did really happen; and in what may he declare in what county he pleases? 294.
4. When will the court direct a change of the venue or visne, (that is, the vicinia or neighbourhood in which the injury is declared to be done)? 294.
5. What are different counts in the same declaration; and for what purpose are they designed? 295.
6. What was anciently understood by the word suit? 295.
7. When is a nonsuit, or non prosequitur, entered; and to what is that plaintiff liable who is non pros’d? 295, 296.
8. What is a retraxit; and how does it differ from a nonsuit? 296.
9. What is a discontinuance; and what does the statute 1 Edw. VI. c. 7 enact as to discontinuance? 296.
10. What is a defence, in its true legal sense? 296, 297.
11. What is cognizance of the suit; and when must it be claimed? 298.
12. What is an imparlance; and when is the defendant entitled to how many imparlances? 299.
13. What is a view; and when may it be demanded? 299.
14. What is oyer; and of what may it be craved? 299.
15. What is proying in aid; what is voucher, and when is it not allowed; and what is a writ of warrantia chartæ? 299, 300.
16. What is praying age; and when shall it not be had? 300, 301.
17. Of what two sorts are pleas; and when cannot pleas of the former sort be pleaded? 301.
18. Of what three kinds are dilatory pleas? 301, 302.
19. What effect upon a suit hath the death of one of the parties; and when can it be revived either by or against the executors or other representatives of the deceased party? 302.
20. What, by the statute 4 & 5 Anne, c. 16, is essential to the admission of a dilatory plea; what is a rule as to the admission of exceptions against a declaration or writ; and in what suit shall no abatement take place, by statute 8 & 9 W. III. c. 31? 302.
21. To what three things does each of these kinds of dilatory pleas conclude? 303.
22. What if these dilatory pleas be allowed; and what if they be overruled? 303.
23. In what two ways is a plea to the action made? 303.
24. In what instance is confession of the whole complaint made in a plea to the action? 303.
25. What is the effect of a plea of tender by the debtor and refusal by the creditor? 303.
26. In what two instances is one part of the complaint confessed and the rest traversed or denied? 304.
27. What is the effect of paying money into court; and upon what may it be done? 304.
28. What is a motion? 304.
29. Of what two kinds are pleas that totally deny the cause of complaint? 305.
30. What is the general issue or general plea? 305.
31. What is an issue in law? 305.
32. May special matter be given in evidence upon a plea of general issue? 305, 306.
33. What are special pleas in bar of the plaintiff’s demand? 306.
34. What are the times limited by the several statutes of limitation beyond which no plaintiff can lay his cause of action? 306, 307.
35. What is an estoppel? 308.
36. What are the five conditions and qualities of a plea? 308.
37. What if the defendant in an assise or action of trespass be desirous to refer the validity of his title to the court rather than the jury? 309.
38. When and what may the plaintiff reply to the defendant’s plea; what is a traverse of it; what a new or novel assignment; and what a confession and avoidance? 309-311.
39. What are the remaining processes of pleading? 310.
40. What is called a departure in pleading? 310.
41. What is called duplicity in pleading; and what a protestation; and how hath Sir Edward Coke defined the latter? 311, 312.
42. In any stage of the pleadings, when either side advances or affirms any new matter, in what language does he aver it to be true; and in what different language do the plaintiff and the defendant tender an issue when either side traverses or denies the facts pleaded by his antagonist? 313.
43. But what if either side plead a special negative plea, not traversing or denying any thing that was before alleged, but disclosing some new negative matter? 313.
Of Issue and Demurrer.
1.What is issue, exitus; and upon what two matters? 314.
2. What is an issue upon matter of law called? 314.
3. What is a demurrer; and, in case of exceptions to the form or manner of pleading, what must the party demurring do, by statutes 27 Eliz. c. 5, and 4 & 5 Anne, c. 16? 314, 315.
4. Upon either a general or a special demurrer, what must the opposite party do in order to put the parties at issue in point of law; and who must determine that issue? 315.
5. What is an issue of fact; when is it joined; and what is the principal method by which it must be determined? 315.
6. What is continuance; what if the omission be on the part of the plaintiff; and what if it be on the part of the defendant? 316.
7. What is a plea puis darrein continuance; what is its effect; and when is it not allowed to be put in? 316, 317.
8. What are paper-books; and what is the record? 317.
Of the several Species of Trial.
1.What is trial; and what are the seven species of trial in civil cases? 330.
2. In what particular instance is trial by record used; what is it; and what may it try? 330, 331.
3. What is trial by inspection or examination; and when shall it be had? 331-333.
4. What is trial by certificate; and in what six cases shall it be had recourse to? 333-336.
5. What is trial by witnesses, per testes; and when only is it allowed in our law? 336.
6. What is trial by wager of battel, vadiatio duelli; in what cases was it used; what is the form of it; and by what has it been superseded? 337-341.
7. What is trial by wager of law, vadiatio legis; what is the manner of waging law; in what actions only is the defendant admitted to wage his law; who shall not be permitted to wage law; and how has this species of trial become obsolete? 341-348.
Of Trial by Jury.
1.Of what antiquity is trial by jury, called also trial per pais or by the country; and what does magna carta declare concerning it? 349, 350.
2. Of what two kinds are trials by jury in civil causes? 351.
3. What is the first species of extraordinary trial by jury? 351.
4. What is another species of extraordinary jury? 351.
5. What are the eight processes of the ordinary trial by jury? 352, 356-358, 364, 365, 367, 375.
6. What is the writ of venire facias; and when and where must the sheriff return it by virtue of the statute 42 Edw. III. c. 11? 352, 353.
7. What are called issuable terms, and why; and what is the sheriff’s panel? 353.
8. What, in the common pleas, is called a writ of habeas corpora juratorum, and, in the king’s bench, a distringas; and what is the entry on the roll, or record? 354.
9. What if the sheriff be not an indifferent person; and who are called elisors, or electors? 354, 355.
10. What if, on the general day of trials, the plaintiff do not enter the record? 356.
11. What is called the trial by proviso; but why hath this practice begun to be disused since the statute 14 Geo. II. c. 17? 356, 357.
12. In case the plantiff intend to try the cause, what notice of trial is he bound to give the defendant; and what if the plaintiff then change his mind and do not countermand the notice how many days before the trial? 357.
13. How may the trial be deferred, however, by either party? 357.
14. To whom does the sheriff return his writ of habeas corpora, or distringas, with what annexed? 357.
15. Of what two sorts are jurors? 357.
16. What is the sheriff’s duty upon motion in court and a rule granted thereupon for a special jury; and how and by whom is it struck? 357, 358.
17. By the statute 3 Geo. II. c. 25, who is entitled to have a special jury struck upon what trial; and, by statute 24 Geo. II. c. 18, when shall the expense of a special jury not fall upon the party requiring it? 358.
18. What is a common jury; and what are the directions of the statute 3 Geo. II. c. 25 concerning it? 358.
19. What is a view; and how and by whom shall it be appointed? 358.
20. Of what two sorts are challenges of jurors? 358.
21. What are challenges to the array; and upon what accounts may they be made? 359, 360.
22. Where one party to the suit is an alien, of whom shall the jury consist; but what if both parties be aliens? 360.
23. What are challenges to the polls, in capita; and to what four heads are they reduced by Sir Edward Coke? 361.
24. Can judges and justices be challenged? 361.
25. What is a writ de ventre inspiciendo? 362.
26. What, by a variety of statutes, is a disqualification for juror in point of estate; but what when the jury is de medietate linguæ? 362, 363.
27. Of what two sorts is a challenge propter affectum, for suspicion of bias or partiality; what if the causes of challenge of the first sort be true; and to whom is it given to try the validity of challenges of the second sort? 363.
28. With regard to what causes of challenge may a juror himself be examined on oath of voir dire, veritatem dicere? 364.
29. Who are excused from serving on juries? 364.
30. Who may pray a tales, and what is it; and for this purpose when must a writ of decem tales, octo, tales, and the like, still be issued to the sheriff; but, by virtue of the statute 35 Hen. VIII. c. 16, when may the judge award a tales de circumstantibus; and what is it? 364, 365.
31. To what are the jurors sworn? 365.
32. What is the course of proceeding upon the trial? 366, 367.
33. What is the definition of evidence? 367.
34. Of what two kinds is evidence in the trial by jury? 367.
35. Of what two sorts are proofs? 367.
36. What two written proofs or evidence prove themselves; and what are the other two; and how must they be verified? 367, 368.
37. What is one general rule of evidence that runs through all the doctrine of trials; and upon what principle is hearsay evidence in general not admitted? 368.
38. To what transactions does the statute 7 Jac. I. c. 12 confine the admission of books of account to be read in evidence if the servant who was accustomed to make the entries in it be dead and his handwriting proved? 368, 369.
39. What is the writ of subpœna ad testificandum; but when is no witness bound to appear or to give evidence? 369.
40. Who are competent witnesses? 369, 370.
41. How many witnesses are sufficient evidence of any single fact? 370.
42. When is positive proof required; and when is circumstantial or presumptive evidence admitted? 371.
43. What weight have severally violent presumption, probable presumption, and light presumption? 371.
44. Need the witness tell all he knows of the matter in question, whether interrogated to every Joint or not? 372.
45. What if the judge, either in his directions or decisions, misstate the laws, by ignorance, inadvertence, or design? 372.
46. What is a demurrer to evidence; and by whom shall it be determined? 372.
47. But what practice has greatly superseded the recourse to either of these last proceedings? 373.
48. What are the advantages of testimony ore tenus? 373.
49. What is the modern doctrine as to such evidence as the jury may have in their own consciences by their private knowledge of facts? 374, 375.
50. What is the summing up of the evidence by the judge? 375.
51. How is the delivery of the jury’s verdict, veredictum, accelerated; and what if the jurors eat or drink at all, or have any eatables about them, without consent of the court? 375.
52. What circumstances will set aside the verdict? 375, 376.
53. What it the plaintiff do not appear to the verdict? 376.
54. What is the form of a voluntary nonsuit; and why is it more eligible for the plaintiff than a verdict against him? 376, 377.
55. Of what two kinds is a verdict ; and when is a verdict of the first kind of no force? 377.
56. What have the jury also to do if they find issue for the plaintiff? 377.
57. What is a special verdict; and by whom is it afterwards determined? 377.
58. What is another method of finaing a species of special verdict: and what advantage has this over the other kind of special verdict? 378.
59. In both these cases, must the jury return a special verdict; and are they incompetent to decide the complicated question of fact and law? 378.
60. What are the four principal defects incident to a trial by jury? 382, 383.
61. What is a subpœna duces tecum? 382.
Of Judgment and its Incidents.
1.What is a postea? 386.
2. What is judgment; and till when and till what can it not be entered? 386, 387.
3. What are causes of suspending the judgment, by granting a new trial? 387.
4. What if two juries agree in the same or a similar verdict? 387.
5. What is a new trial; upon what proceedings is it granted; and where is it not granted? 391, 392.
6. How has the court, in granting a new trial, an opportunity of supplying the defects in the trial by jury; and within what time must the motion for a new trial be made? 392.
7. From what causes do arrests of judgment arise? 393.
8. What is an invariable rule with regard to arrests of judgment upon matter of law; and will this rule hold e converso? 394.
9. What is a repleader quod partes replacitent; and when will the court award it? 395.
10. What is judgment; and of what four sorts? 395, 396?
11. Whose determination and sentence is the judgment; and what words constitute the style of the judgment? 396.
12. Of what two natures are all these four species of judgments? 396.
13. What is judgment of respondent ouster? 396, 397.
14. What are the interlocutory judgments most usually spoken of; when only can they happen, when are they absolutely complete; and when and for what purpose, must a jury be called in? 397, 398.
15. What is a warrant of attorney to confess a judgment; and what does the statute 4 & 5 W. and M. c. 20 require in order to its validity? 397, 398.
16. What is a writ of inquiry to assess damages? 398.
17. What are final judgments; and is the party against whom judgment is given liable to any fine to the king or imprisonment till that fine be paid? 398, 399.
18. Which party shall pay the costs of the suit? 399, 400.
19. Who are not liable to pay costs? 400.
20. What is enacted by statutes 43 Eliz. c. 6, 21 Jac. I. c. 16, and 22 & 23 Car. II. c. 9, 136, to prevent trifling and malicious actions, for words, for assault and battery, and for trespass, with what two exceptions, by statutes 4 & 5 W. and M. c. 23 and 8 & 9 W. III. c. 11? 401.
21. What follows after judgment, unless what? 401.
Of Proceedings in the Nature of Appeals.
1.Of what four principal kinds are proceedings in the nature of appeals from the proceedings of the king’s court of law? 402, 405, 406.
2. What is a writ of attaint; when, at common law, must it be brought; and on what issue only does it not lie? 402-404.
3. What jury are to try this false verdict; what are the qualifications of the jurors, by statute 15 Hen. VI. c. 5; and which party only is allowed to produce new matter, and why? 404.
4. What was the judgment by the common law if the grand jury found the verdict a false one? 404.
5. But what was enacted by several statutes as to the time when an attaint may be brought, and as to the punishment of the attainted jurors? 405.
6. But what has superseded the use of attaints? 405.
7. What is the writ of deceit? 405.
8. What is an audita querela; and for what two persons does it lie? 405, 406.
9. But what has rendered this writ almost useless? 406.
10. But what is the principal method of redress for erroneous judgments in the king’s courts of record? 406.
11. What is the writ to amend errors in a base court not of record? 407.
12. Upon what matter only does a writ of error lie? 407.
13. Till when may the record be amended; and what is the effect of the statutes of amendment and jeofails? 407, 408.
14. What is required of him that brings the writ, if it be brought to reverse any judgment of an inferior court of record, where the damages are less than ten pounds, or if it be brought to reverse the judgment of any superior court after verdict? 410*.
15. From what courts lies the writ of error into the king’s bench? 410*.
16. Whence lies the writ of error into the court of exchequer-chamber; and before whom? 410*.
17. Whence lies the writ of error in the house of peers; and thence whence? 410*, 411*.
1.What is execution; and how is it performed? 412.
2. What are writs of habere facias seisinam and habere facias possessionem; to whom are they directed; what is justifiable in their execution; and what is sufficient execution? 412.
3. What is a writ de clerico admittendo; and to whom is it directed? 412.
4. When does a special writ of execution issue to the sheriff? 413.
5. What writ shall the plaintiff have where one part of the judgment is quod nocumentum amoveatur; what is the writ of execution upon a replevin; what shall the defendant have if the distress be eloigned; and what shall the plaintiff have after judgment in detinue? 413.
6. Of what five sorts are executions in actions where money only is recovered as a debt or damages, and not any specific chattel? 414.
7. What is the writ of capias ad satisfaciendum; and against whom does it not lie? 414, 415.
8. To whom shall the capias issue if an action be brought against a husband and wife for the debt of the wife when sole; and to whom if the action were brought against her before her marriage? 414.
9. What if judgment be recovered against a husband and wife for the contract or personal misbehaviour of the wife during her coverture? 414.
10. What exemption has the man who is taken in execution upon this writ; and what does the statute 21 Jac. I. c. 24 enact if the defendant die while charged in execution upon this writ? 414.
11. What executory process may be sued out for costs? 415.
12. What if, after a defendant is once in custody upon this process, he be seen at large? 415.
13. Of what two natures are escapes; and when shall the sheriff answer for the debt? 415.
14. Will a rescue of a prisoner in execution excuse the sheriff? 415.
15. But what does the statute 32 Geo. II. c. 28 enact in favour of defendants charged in execution? 415, 416.
16. Yet what powers have creditors over their debtors on the other hand? 416.
17. In what case may the plaintiff set out a writ of scire facias against the bail; and what is its effect? 416, 417.
18. What is a writ of fieri facias; against whom does it lie; what doors may be broken open in its execution; who must be first paid to what amount; and what further remedy has the plaintiff if part only of the debt be levied on a fieri facias? 417.
19. What is a writ of levari facias; and by what is its use superseded? 417.
20. What is a writ in the nature of a levars or fieri facias, to levy the debt and damage de bonis ecclesiasticis; to whom is it directed; and by what is it followed? 418.
21. What is the writ of elegit; what lands are not liable to be taken in execution upon a judgment; what in case of a debt to the king, by magna carta, c. 8; and in what case only can a capias ad satisfaciendum be had after an elegit? 418, 419.
22. What is an extent, or extendi facias; and upon what prosecutions may it be had? 419, 420.
23. What, by statute 33 Hen. VIII. c. 39, of all obligations made to the king; and what lands of a debtor does the king’s judgment, or that of any of his officers mentioned in the statute 13 Eliz. c. 4, affect more than the subject’s? 420.
24. By the statute of frauds, 29 Car. II. c. 3, from what day shall the judgment bind the land in the hands of a bonâ fide purchasor; and from what day shall the writ of execution bind the goods in the hands of a stranger or purchasor? 421.
25. When the plaintiff’s demand is satisfied, what ought to be entered on the record? 421.
26. But within what time must all these writs be sued out? 421.
27. Yet, if this had not been the case, what will the court grant, in pursuance of statute Westminster 2, 13 Edw. I. c. 45; or what other remedy has the plaintiff? 421, 422.
Of Proceedings in the Courts of Equity.
1.What four matters of equity are peculiar to the jurisdiction of the court of chancery? 426-428.
2. When has the court of chancery a right to appoint a guardian; and whither lies the appeal in all proceedings relative thereto? 427.
3. How only can the proceedings to inquire whether or no the party be an idiot or lunatic be redressed if erroneous? 427.
4. On the other hand, doth not the jurisdiction of the court of chancery fail to extend to some causes wherein relief may be had in the court of exchequer and the duchy court of Lancaster? 428, 429.
5. What is equity in its true and genuine meaning; and does equity differ from law? 429-436.
6. What are the five essential differences whereby the courts of equity are distinguished from the courts of law? 436.
7. What does a court of equity, in the way of proof, when facts or their leading circumstances rest only in the knowledge of the party; and, for want of this discovery at law, in what matters have the courts of equity acquired a concurrent jurisdiction with every other court? 437, 438.
8. What authority and jurisdiction have courts of equity in interrogatories administered to witnesses; and in what cases, on this account, do they exercise the same jurisdiction which might have been exercised at law? 438.
9. In what cases does the want of a more specific remedy then can be obtained in the courts of law give a concurrent jurisdiction to a court of equity? 438, 439.
10. What are the fifteen proceedings in the courts of equity? 442-445.
11. What is a bill; what does it always pray; and when does it pray also an injunction? 442.
12. What if the bill do not call all necessary parties, however remotely interested, before the court; by whom must it be signed; and what if it contain matter either scandalous or impertinent? 442, 443.
13. Where must the bill be filed; and when will the court grant an injunction immediately? 443.
14. What is the process of subpœna; and what if the defendant do not appear within the time limited by the rules of the court, and plead, demur, or answer to the bill? 443.
15. What are the respective processes of contempt, in their successive order; what if the defendant abscond; and what if he be taken? 444, 445.
16. What is the process against a corporate body; and what against a peer; and what against a member of the house of commons? 445.
17. What does the statute 5 Geo. II. c. 25 enact where the defendant cannot be found to be served with process of subpœna? 445.
18. What is a demurrer in equity? 446.
19. Of what three kinds are pleas; and may a defendant plead, demur, and answer too? 446.
20. Why are exceptions to formal minutiæ in the pleadings in equity not allowed? 446.
21. What is an answer; when is it given upon oath, and when not; and when upon honour? 446.
22. Before whom must the defendant be sworn to his answer; by whom must the answer be signed; and when may it be excepted to for insufficiency? 447, 448.
23. If the defendant have any relief to pray against the plaintiff, how must it be done? 448.
24. When may the plaintiff amend his bill; and when must he have recourse to a supplemental bill? 448.
25. What is a bill of revivor; and what a bill of interpleader; and what must be annexed to this last bill? 448.
26. What if the plaintiff choose to proceed to the hearing of the cause upon bill and answer only? 448.
27. What is a replication; and how does the defendant join issue? 448, 449.
28. How and by whom are witnesses examined; of what nature must the interrogatories be; to what are examiners and their clerks sworn; and how are they compellable to appear and submit to examination? 449.
29. What is a bill to perpetuate the testimony of witnesses? 450.
30. When may a rule to pass publication of witnesses be had? 450.
31. By whom and before whom may the cause be set down for a hearing? 450.
32. What if the plaintiff do not attend upon subpœna to hear judgment; and what if the defendant? 451.
33. When may a plaintiff’s bill be dismissed for want of prosecution? 451.
34. What is the method of hearing causes in court? 451.
35. Of what two natures is the chancellor’s decree? 452.
36. When does the court of chancery direct a feigned issue to be tried at the bar of the court of king’s bench, or at the assises; and what is the fiction? 452.
37. What does the court refer to the opinion of the courts of king’s bench or common pleas, upon a case stated; and what is done there in consequence? 452, 453.
38. What are referred by the decree, on the first hearing, to a master in chancery; and what is done by him in consequence? 453.
39. To what is the master’s report liable? 453.
40. When and upon what is a final decree made and how is its performance enforced? 453.
41. Who may petition for a re-hearing; by whom must such petition be signed; what evidence is now admitted; and what may be supplied? 453, 454.
42. But, after the decree is once signed and enrolled, how only can it be rectified? 454.
43. When may a bill of review be had? 454.
44. How is an appeal to the house of lords effected; and what evidence only is admitted there? 454, 455.
OF PUBLIC WRONGS.
Of the Nature of Crimes, and their Punishment.
1.What are the six considerations in treating of public wrongs, or crimes and misdemeanours? 1, 2.
2. Why is the code of criminal law with us in England denominated the doctrine of the pleas of the crown? 2.
3. From what circumstances have the defects and disproportions in our criminal code arisen? 3, 4.
4. What is a crime or misdemeanour; and how has common usage distinguished the one from the other? 5.
5. In what does the distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, principally consist? 5.
6. Which includes the other? 6.
7. In what crimes why cannot satisfaction be made both to the individual and the community? and in what how may it? 6, 7.
8. What double view, then, has the law in taking cognizance of all wrongs or unlawful acts? 7.
9. What are punishments? 7.
10. In whom was the right of punishing crimes against the law of nature vested by that law? 7, 8.
11. 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 rigour 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 misdemeanour 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 distinction in the nature and gradations of punishment? 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.
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 heads; 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? 24.
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.
11. 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, 30.
16. When only is the constraint of a superior in a private relation allowed as an excuse for what crimes? 28, 29.
17. Why shall no plea of coverture, or presumption of the husband’s coercion, excuse the wife in case of treason? 29.
18. In what one offence may a wife be indicted and set in the pillory with her husband; and why? 29.
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.
Of Principals and Accessories.
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 accessory; and why? 34, 35.
5. Who is an accessory; and of what two kinds are accessories? 35.
6. Why are all principals in high treason? 35.
7. In what crimes may there be accessories? 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 accessory to petty treason? 36.
10. Who is an accessory before the fact? 36, 37.
11. If A. command B. to beat C., and B. beat him so that he die, is A. accessory to the murder? 37.
12. If A. command B. to burn C.’s house, and he, in so doing, commit a robbery, is A. accessory to the robbery? 37.
13. If A. command B. to poison C., and B. stab or shoot him, is A. accessory to the murder? 37.
14. Who is an accessory 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 accessory after the fact? 38.
16. Who are made accessories (when the principal felony admits of accessories) by the statutes 5 Anne, c. 31, and 4 Geo. I. c. 11? 38.
17. What if one wound another mortally, and, before death ensue, a person assist or receive the delinquent? 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 accessories to be treated, considered distinct from principals? 39.
20. For what four reasons, then, are such elaborate distinctions made between accessories and principals? 39, 40.
21. In what cases are accessories 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 accessories before the fact? 39.
22. Is an acquittal of receiving or counselling a felon an acquittal of the felony itself? 40.
23. Can one acquitted as principal be indicted as an accessory either before or after the fact? 40.
Of Offences against God and Religion.
1.Of what five species are crimes and misdemeanours 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 misdemeanours 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; what did the statute 29 Car. II. enact as to heresy; and, as a penalty 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) are they exempted by subscribing the declaration of the act 19 Geo. III.? 53, 54.
11. 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 meeting-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 magistrate’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 harbouring 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.
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.
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. 1 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?
Of Offences against the Law of Nations.
1.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; and what is enacted as to offences against strangers at sea, or in port, by statute 31 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 law; how only is it punishable since the statute of treasons, 25 Edw. III. c. 2; and 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.
Of High Treason.
1.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 regnant 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 11 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.
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.
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 companion” mean, to violate whom is declared by the statute to be the second species of treason; and when is it treason in both parties? 81.
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 particular 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 with either rebels or enemies, in the kingdom, 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.
25. 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 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. 11, and 18 Eliz. c. 1? 90.
29. What offences, as to implements of and preparations for coinage, are declared to be high treason by statute 8 & 9 W. III. c. 26, made perpetual by 7 Anne, c. 25; and within what times must all prosecutions on this act be commenced? 90.
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 1 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.
Of Felonies injurious to the King’s Prerogative.
1.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 inflicted 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 misdemeanours 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. II. 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 armour or warlike stores: what effect upon this statute has that of 22 Car. II. c. 5; how are other inferior embezzlements and misdemeanours punished by several statutes; and what is enacted by statute 12 Geo. III. c. 24? 101, 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.
1.Why is the offence of præmunire 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 statute 2 Hen. IV. c. 3? 112.
3. What offences are made liable to the pains of præmunire 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 punishment; and what does the statute 5 Eliz. c. 1 provide as to the consequences of an attaint by præmunire? 117, 118.
Of Misprisions and Contempts affecting the King and Government.
1.What are misprisions (mespris) and contempts; and of what two sorts? 119.
2. Of what three kinds are negative misprisions? 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 misvrision of treason? 120.
6. What is misprision of felony; and how is it punished by the statute Westm. 1, 3 Edw. L. c. 9? 121.
7. What is the punishment for misprision or treasure-trove? 121.
8. Of what five kinds are positive misprisions, or contempts, and high misdemeanours, the last four consisting, in general, of such contempts of the executive magistrate as demonstrate themselves by some arrogant and undutiful behaviour 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.
10. 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 title not amounting to treason or præmunire; and how are they punished? 123.
15. What offence is it, and how punishable by statute 13 Eliz. c. 1, to maintain that the common laws of this realm not altered by parliament ought not to direct the right of 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 statute for better securing the government, and yet acting or serving in a public office, 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 behaviour in the inferior courts of the king? 126.
19. How are such as are guilty of any injurious treatment to those who are immediately under the protection of a court of justice punishable? 126.
20. How are endeavours to dissuade a witness from giving evidence, disclosures of examination before a privy council, advice to a prisoner to stand mute, or disclosures by one of the grand jury to any person indicted of the evidence against him, construed and punished? 126.
Of Offences against Public Justice.
1.Into what five species may those crimes and misdemeanours that more especially affect the commonwealth be divided? 127, 128.
2. What are the twenty-two offences against public justice, beginning with those that are most penal, and descending gradually to such as are of less malignity? 128-137, 139-141.
3. What is enacted by statute 8 Hen. VI. c. 12 as to embezzling or vacating records, by statute 21 Jac. I. c. 26, as to acknowledging any proceedings in the courts in the name of another person not privy to the same, and, by statute 4 W. and M. c. 4, as to personating any other person as bail? 128.
4. What is enacted by statute 14 Edw. III. c. 10 if any gaoler compel any prisoner to become an approver or an appellor? 128, 129.
5. What is the offence of obstructing the execution of lawful process in criminal cases; and what is enacted by several statutes as to opposing the execution of any process in pretended privileged places within the bills of mortality? 129.
6. Who are punishable for the escape of a person arrested upon criminal process; how, and when? 129, 130.
7. How is breach of prison by the offender himself punished by the statute de frangentibus prisonam, 1 Edw. II.? 130, 131.
8. What is rescue; how is it punishable, and when; what is enacted by statutes 11 Geo. II. c. 26, and 24 Geo. II. c. 40, as to rescues of any retailers of spirituous liquors, and by statute 16 Geo. II. c. 31, as to assisting prisoners to escape; and what if any person be charged with any of the offences against the black act, 9 Geo. I. c. 22, and, being required by order of the privy council to surrender himself, neglect to do so for forty days? 131.
9. Who are punishable for an offender’s returning from transportation, and how? 132.
10. What is enacted by statute 4 Geo. I. c. 11 as to the offence of taking a reward under pretence of helping the owner to his stolen goods? 132.
11. In the offence of receiving stolen goods knowing them to be stolen, which makes the offender accessory to the theft, of what other punishment has the prosecutor, by statutes 1 Anne, c. 9, and 5 Anne, c. 31, the choice before the thief be taken and convicted; and what is enacted as to receivers and possessors of certain metals, by statute 29 Geo. II. c. 30, and as to knowing receivers of stolen plate or jewels taken by highway-robbery or burglary? 132, 133.
12. What is theft-bote, and how is it punished; and what is enacted by statute 25 Geo. II. c. 36 as to advertising a reward for the return of things stolen with “no questions asked”? 133, 134.
13. What is common barretry; how is it punished; and what is enacted by statute 12 Geo. I. c. 29 in case an attorney shall have been convicted of this offence? 134.
14. What is the punishment for suing in a false name in the superior courts, and what in the inferior, by statute 8 Eliz. c. 2? 134.
15. What is the offence of maintenance; when is it not an offence; and what is the punishment for it when it is by common law, and by statute 32 Hen. VIII. c. 9? 134, 135.
16. What is champerty (campi partitio); and what has the law’s abhorrence of it led it to say of a chose in action by common law, and of a pretended right or title to land, by statute 32 Hen. VIII. c. 9? 135, 136.
17. What is enacted by statute 18 Eliz. c. 5 as to compounding informations upon penal statutes? 136.
18. In what two ways may conspirators to indict an innocent man of felony be punished? 136, 137.
19. How are threats of accusation in order to extort money punishable by statute 30 Geo. II. c. 24? 137.
20. How is perjury defined by Sir Edward Coke; what is subornation of perjury; how are they now punished at common law, with an added power in the court to inflict what penalties, by statute 2 Geo. II. c. 25; and how may they be punished by statute 5 Eliz. c. 9? 137, 138.
21. When is bribery an offence against public justice; in whom and how is it punished; and what is enacted on this subject by a statute 11 Hen. IV.? 139, 140.
22. What is embracery; and in whom and how is it punished? 140.
23. How was the false verdict of jurors anciently considered, and how punished? 140.
24. In what public officers is negligence an offence against public justice; and how is it punishable? 140.
25. How is the oppression and tyrannical partiality of magistrates prosecuted and punished? 141.
26. When is extortion an abuse of public justice; and what is the punishment for it? 141.
Of Offences against the Public Peace.
1.Of what two species are offences against the public peace; and of what two degrees are both these kinds? 142.
2. What are the thirteen kinds of offences against the public peace? 142-150.
3. What does the statute 1 Geo. I. c. 5 enact as to the riotous assembling of twelve persons or more, and not dispersing upon proclamation? 143.
4. What does the statute 9 Geo. I. c. 22 enact as to appearing armed, or hunting in disguise? 143, 144.
5. What does the same statute, amended by statute 27 Geo. II. c. 15, enact as to sending any demanding or threatening letter? 144.
6. What, by several late statutes, are the penalties for destroying or damaging any lock, sluice, or flood-gate, or any turnpike-gate, or its appurtenances, or for rescuing such destroyers or damagers? 144, 145.
7. What are affrays (affraier); wherein do they differ from assaults; by whom, and how, may they be suppressed; and what is their punishment? 145.
8. What is enacted by statute 5 & 6 Edw. VI. c. 4 as to affrays in a church or churchyard? 146.
9. What are riots, routs, and unlawful assemblies; and of how many persons must they be constituted: how are they punished by common law; and what is enacted for their suppression by statute 13 Hen. IV. c. 7? 146, 147.
10. What is tumultuous petitioning; and what is enacted for its prevention by statute 13 Car. II. st. 1, c. 5? 147, 148.
11. What is forcible entry or detainer; and how, by several statutes, may it be suppressed and punished? 148, 149.
12. What is the offence of going unusually armed; and how is it prohibited by the statute of Northampton, 2 Edw. III. c. 3? 149.
13. When is the offence of spreading false news punishable, and how? 149.
14. How is the offence of pretended prophecy punished by statute 5 Eliz. c. 15? 149.
15. In whom are challenges to fight punishable, and how; and what, by statute 9 Anne, c. 14, if the challenge, or any assault or affray, arise on account of any money won at gaming? 150.
16. What are libels which tend to the breach of the peace; what is a publication of them, in the eye of the law; what if they be true, and what if they be false; what is the difference between a libel in a civil action and a libel in a criminal prosecution; and what is the punishment of criminal libels? 150, 151.
17. Though it hath been long held that the truth of a libel is no justification in a criminal prosecution, yet what general rule has the court of king’s bench laid down as to granting an information for a libel? 151.
Of Offences against Public Trade.
1.Of what two degrees are offences against public trade? 154.
2. What are the thirteen kinds of these offences? 154, 156-160.
3. What is owling; and what are its penalties, by several statutes? 154.
4. What is smuggling; and how is it punished by statute 19 Geo. II. c. 34? 154, 155.
5. What are the several species of fraudulent bankruptcy taken notice of by the statute law; and how are they punished? 156.
6. What, by statute 21 Jac. I. c. 19, if the bankrupt cannot make it appear that he is disabled from paying his debts by some casual loss; and what, by statute 32 Geo. II. c. 28, and 33 Geo. III. c. 5, if a prisoner charged in execution for debt (to what amount?) neglect or refuse on demand to deliver up his effects? 156.
7. What is the penalty for usury; what if any scrivener or broker take more than five shillings per cent. procuration-money, or more than twelve-pence for making a bond; and what is enacted on this subject by statute 17 Geo. III. c. 26? 156, 157.
8. What offences may be referred to the head of cheating; what is the general punishment for all frauds of this kind if indicted at common law; and what frauds are punished by the statutes 33 Hen. VIII. c. 1 and 30 Geo. II. c. 24? 157, 158.
9. How are the three offences of forestalling, regrating, and engrossing described by statute 5 & 6 Edw. VI. c. 14; and what is the general penalty for these offences by common law? 158, 159.
10. What are monopolies; and how are they punished? 159.
11. How are combinations among victuallers or artificers to raise the prices of commodities punished by statute 2 & 3 Edw. VI. c. 15? 159, 160.
12. How is the offence of exercising a trade without having served an apprenticeship punished by statute 5 Eliz. c. 4? 160.
13. What is enacted by several statutes of Geo. II. and Geo. III. to prevent the seduction of our artists abroad, and the destruction of our home manufactures? 160.
Of Offences against the Public Health and the Public Police or Economy.
1.What are the two offences against the public health of the nation? 161, 162.
2. What is enacted by statute 1 Jac. I. c. 31 as to any person infected with the plague, or dwelling in any infected house; and what is the present law as to quarantine? 161, 162.
3. What is enacted by statutes 51 Hen. III. st. 6 and 12 Car. II. c. 25, 11 to prevent the selling of unwholesome provisions and wine? 162.
4. What is meant by the public peace and economy? 162.
5. What are the nine offences against the public peace and economy? 162-166, 169-171, 174.
6. What is enacted by the statute 26 Geo. II. c. 33 for the prevention of the offence of clandestine marriages? 162, 163.
7. What is bigamy, or more properly polygamy; what is its effect upon the second marriage; and how is it punished by statute 1 Jac. I. c. 11, with an exception to what five cases? 163, 164.
8. How are wandering soldiers and mariners, or persons pretending so to be, punished by statute 39 Eliz. c. 17? 164, 165.
9. How are persons calling themselves Egyptians, or gypsies, now punished, by statute 23 Geo. III. c. 51? 167.
10. What are common nuisances; and of what seven sorts? 167, 168.
11. Who may be indicted, and what shall be equivalent to such indictment, for annoyances in highways, bridges, and public rivers, whether by positive obstructions or want of reparation; and what is a purpresture? 167.
12. What if innkeepers refuse to entertain a traveller without a very sufficient cause? 167.
13. How may eaves-droppers be punished? 168.
14. How may a common scold (communis rixatrix)? 168.
15. Into what three clases are idle persons divided, and how is each class punished by statute 17 Geo. II. c. 5; and to what are persons harbouring vagrants liable? 169, 170.
16. What one sumptuary law against luxury is still unrepealed? 170.
17. What is enacted by statute 16 Car. II. c. 7 if any person by playing or betting shall lose more than 100l. at one time; what does the statute 9 Anne, c. 14 enact as to all securities given for money won at play, if any person at one sitting lose 10l. at play, and if any person by cheating at play win the same sum; what does the statute 13 Geo. II. c. 19 enact to prevent the multiplicity of horse-races; and what, by statute 18 Geo. II. c. 24, if any person win or lose at play, or by betting, 10l. at one time, or 20l. within twenty-four hours? 172, 173.
18. Who are guilty of the offence of destroying the game upon the old principles of the forest-law, and who by the game-laws; and what are the four qualifications for killing game, as they are usually called, or, more properly, the exemptions from the penalties inflicted by the statute law? 174, 175.
19. What are the punishments for unqualified persons transgressing the game-laws in what ways; and how may those punishments be inflicted? 175.
20. What is enacted for the preservation of game by statute 28 Geo. II. c. 12? 175.
1.Of what three principal kinds are those crimes and misdemeanours which in a more peculiar manner affect and injure individuals or private subjects? 177.
2. Of crimes injurious to the persons of private subjects, what is the most principal and important? 177.
3. Of what three kinds, and of what three degress of guilt, is homicide? 177, 178.
4. In what three cases is homicide justifiable? 178, 179.
5. What offence is it wantonly to kill the greatest of maletactors? 178.
6. What if judgment of death be given by a judge not authorized by lawful commission, and execution be done accordingly? 178.
7. What if even the judge execute his own judgment; and what if an officer behead one who is adjudged to be hanged, or vice versâ? 179.
8. Of what six kinds are justifiable homicides, committed for the advancement of public justice? 179, 180.
9. But, in all these first five cases, what apparent necessity must there be on the officer’s side? 180.
10. When is it lawful to kill any person who attempts a burglary; and what is the uniform principle that runs through all laws as to repelling crimes by homicide? 180, 181.
11. What is Mr. Locke’s doctrine on this subject, and how is it received by the commentator? 181, 182.
12. Wherein does excusable differ from justifiable homicide; and of what two sorts is the former? 182.
13. In what cases does homicide per infortunium, or misadventure, happen? 182.
14. In what cases, however, is the slayer guilty of manslaughter and not misadventure only; but when are deaths in tilts or tournaments, boxing, or sword-playing only misadventure? 183.
15. What is homicide in self-defence, or se defendendo; what is chance-medley, or chaud-medley; and what must appear to excuse homicide by the plea of self-defence? 183, 184.
16. What seems to be the true criterion to distinguish homicide upon chance-medley, in self-defence, from manslaughter in the legal sense of the word? 184, 185.
17. What civil and natural relations are comprehended under the excuse of se defendendo, and why? 186.
18. Is there not one species of homicide se defendendo where the party slain is equally innocent with him who occasions his death; and upon what principle is this homicide excusable? 186.
19. In what circumstances do the two species of homicide by misadventure and self-defence agree; and what does the law’s high value for the life of a man always intend? 186, 187.
20. What is the penalty for homicide? 188.
21. What is felonious homicide, and of what two kinds? 188.
22. What is self-murder, or felo de se; does it admit of accessories; when, and in whom, may it happen, and when in a real lunatic? 189, 190.
23. How is self-murder punished? 190.
24. What if a husband and wife be possessed jointly of a term of years in land, and the husband drown himself; and why? 190.
25. How do the two degrees of guilt in killing another divide the offence; and what is the difference between either division of it? 190.
26. How is manslaughter therefore defined; and of what two branches is it? 191.
27. When is it voluntary manslaughter; and what circumstance makes it amount to murder? 191.
28. In what, therefore, does voluntary manslaughter differ from excusable homicide, se defendendo? 192.
29. In what does involuntary manslaughter differ from homicide excusable by misadventure? 192.
30. But what circumstances will make involuntary manslaughter amount to murder? 192, 193.
31. What is the punishment of manslaughter? 193.
32. But is there not one species of manslaughter which is punished as murder by statute 1 Jac. I. c. 8; and how is this statute construed? 193, 194.
33. How is murder defined, or rather described, by Sir Edward Coke? 195.
34. What if a person be indicted for one species of killing, or for killing with one weapon, and it proves to have been another? 196.
35. May a man be guilty of murder although no stroke be struck by himself, or no killing primarily intended? 196.
36. Within what time after the stroke received must the party die in order to make the killing murder? 197.
37. When is it murder to kill a child in its mother’s womb; and what is enacted by the statute 21 Jac. I. c. 27 as to a mother’s concealing the death of her bastard child; but what is now required upon trials for this offence? 198.
38. What constitutes malice prepense, malitia præcogitata; and when is malice express, and when implied, in law? 198-201.
39. Who are guilty of murder in deliberate duelling? 199.
40. If two or more come together to do an unlawful act against the king’s peace, and one of them kill a man, in whom is it murder? 200.
41. What if one intend to do another felony, and undesignedly kill a third man? 201.
42. Unless in what cases may it be taken for a general rule that all homicide is malicious? 201.
43. What is the punishment of murder; and what is enacted on that subject by statute 25 Geo. II. c. 37? 201, 202.
44. What is petit treason (parva proditio), and by what three ways may it happen, according to statute 25 Edw. III. c. 2? 203.
45. Of what crime is a servant guilty who kills his master whom he has left upon a grudge conceived against him during service; and whom is it petit treason in a clergyman to kill? 203.
46. May a person indicted of petit treason be found guilty of manslaughter or murder; and how many witnesses are necessary in case of petit treason? 204.
47. What is the punishment for petit treason, and what in a woman, by statute 30 Geo. III. c. 48? 204.
48. What is the punishment for the aiders, abettors, and counsellors of petit treason? 204.
Of Offences against the Persons of Individuals.
1.Of what two degrees of guilt are other offences against the persons of individuals? 205.
2. What are the four felonies? 205, 208, 210, 215.
3. What amounts to mayhem, mayhemium; and how is it punished by statutes 5 Hen. IV. c. 5, 37 Hen. VIII. c. 6, and 22 & 23 Car. II. c. 1, called the Coventry act? 205-207.
4. What is enacted by statute 9 Geo. I. c. 22 as to the offence of maliciously shooting at any person? 207, 208.
5. What is enacted by statutes 3 Hen. VII. c. 2 and 30 Eliz. c. 9 as to the offence of forcible abduction and marriage of a female, or, as it is vulgarly called, stealing an heiress? 208.
6. What four things have been determined in the construction of the first of these statutes; what has been determined as to the will of the woman; and what general rule of law may be violated in punishing this offence? 208, 209.
7. What is enacted by the statutes 4 & 5 Ph. and M. c. 8 and 26 Geo. II. c. 33 as to an inferior degree of the same kind of offence? 209, 210.
8. What is the crime of rape; and what is enacted as to its punishment by statute 18 Eliz. c. 7? 210, 212.
9. Who is presumed by the law incapable to commit a rape? 212.
10. Can a rape be committed upon a concubine or harlot? 212, 213.
11. What has been determined as to the competency and credibility of witnesses upon an indictment of rape; and what has been now settled as to hearsay evidence of the declarations of a child who hath not capacity to be sworn? 213, 214.
12. What is the punishment for the crime against nature? 215, 216.
13. What are the five inferior offences or misdemeanours against the personal security of the subject? 216.
14. What are the public penalties for assault, battery, and wounding; what other ignominious corporal penalties are inflicted in the case of assaults with intent to murder, or to commit either of the crimes last spoken of; and, when both parties are consenting to the last crime, what is it usual to charge? 216, 217.
15. What is enacted by the statute called articuli cleri, 9 Edw. II. c. 3, as to the offence of beating a clerk in orders? 217, 218.
16. As to the public offence of false imprisonment, how is the sending of any subject of this realm a prisoner beyond the seas punished; what does the statute 43 Eliz. c. 13 declare as to this kind of offence in the four northern counties; and how are inferior degrees of false imprisonment punishable by indictment? 218.
17. What is kidnapping; how is it punished at common law; and what does a clause of the statute 11 & 12 W. III. c. 7 enact to prevent the leaving of kidnapped persons abroad? 219.
Of Offences against the Habitations of Individuals.
1.What are the only two offences that more immediately affect the habitations of individuals or private subjects? 220.
2. What is arson (ab ardendo)? 220.
3. What is such a house as may be the subject of arson? 221.
4. When is wilfully setting fire to one’s own house arson; and when a high misdemeanour? 221.
5. What if a landlord or reversioner set fire to his own house of which another is in possession under lease? 221.
6. What amounts to the burning which constitutes arson; and what is enacted by the statute 6 Anne, c. 31 if any servant negligently set fire to a house or outhouses? 222.
7. How is arson punished in whom? 222, 223.
8. What is burglary, burgi latrocinium; what may a man do to protect his house which he is not permitted to do in any other case; and how is a burglar defined by Sir Edward Coke? 223, 224.
9. At what time must the burglary be committed; and what is held as to the light by which it is committed? 224.
10. What is Sir Edward Coke’s definition of the place in which a burglary must be commited; and why does it not seem extensive enough; and when may a burglary be committed in a barn, stable, or warehouse? 224, 225.
11. When is a lodging the mansion-house of the lodger; and can burglary be committed in the shop, parcel of another man’s house, which I hire to work or trade but not to lie in, or in a tent or booth erected in a market or fair, in which I do lodge? 225, 226.
12. As to the manner of committing burglary, what must there be to complete the offence; and what if a hole be broken one night, and the same breakers enter the next night through the same? 226.
13. In what cases may burglary be committed without breaking, or loosing of fastenings? 226, 227.
14. What is sufficient to constitute the entry which is burglarious; and what is declared as to the precedence of the entry and the burglary by statute 12 Anne. c. 7? 227.
15. What is the law as to the intent of burglary? 227, 228.
16. How is burglary punished in whom? 228.
Of Offences against Private Property.
1.What are the three offences against private subjects which more immediately affect their property, two of which are attended with a breach of the peace? 229.
2. Into what two sorts is larceny, by contraction for latrociny, latrocinium, distinguished by the law? 229.
3. When is simple larceny called grand, and when petit, larceny? 229.
4. What is simple larceny? 229.
5. In what cases may a carrier of goods commit the offence of larceny upon those goods? 230.
6. What is enacted by statutes 33 Hen. VI. c. 1 and 21 Hen. VIII. c. 7 in cases of servants embezzling their master’s goods? 230, 231.
7. What is the offence of embezzling goods of which the offender had not the possession, but only the care or use? 231.
8. Under what circumstances may a man be guilty of felony in taking his own goods? 231.
9. What is a sufficient asportation of goods to constitute a larceny? 231.
10. Who are indemnified by the requisite to a larceny that it must be felonious, that is, done animo furandi? 232.
11. Why can no larceny be committed, by the rules of common law, of things that adhere to the freehold; and why is the severance of them merely trespass by common law; but in what cases may the taking them away amount to larceny? 232, 233.
12. And now, by statute 4 Geo. II. c. 42, how are what offences of this nature punished; and what is enacted by three statutes of Geo. III. as to the offence of stealing any trees, roots, shrubs, or plants? 233, 234.
13. What instance of stealing out of mines is punished by statute 25 Geo. II. c. 10; and how? 234.
14. Why is it no felony to steal writings relating to a real estate? 234.
15. Upon what footing are bonds, bills, and notes put by the statute 2 Geo. II. c. 25; and what is enacted as to embezzlements at the Bank of England, South Sea Company, and post-office, by statutes 15 Geo. II. c. 13, 24 Geo. II. c. 11, and 7 Geo. III. c. 50? 234, 235.
16. When may larceny be committed of animals feræ naturæ; and what is enacted on this subject by statutes 9 Geo. I. c. 22, 16 Geo. III. c. 30, and 5 Geo. III. c. 14? 235, 236.
17. Of what animals domitiæ naturæ can larceny be committed; and what is enacted by statute 10 Geo. III. c. 18 as to dog-stealing? 236, *235.
18. Can larceny be committed if the owner be unknown? *235.
19. When only is stealing a corpse felony? *235.
20. How is simple larceny, whether grand or petit, punished; and how is the punishment for the latter offence mitigated? 238, 239.
21. But in what cases of simple larceny is the benefit of clergy taken away by statute; and why? 238, 239.
22. What is mixed, or compound, larceny? 239.
23. What is larceny from the house; in what four domestic aggravations of larceny above the value of twelvepence is the benefit of clergy denied, and to whom; in what two larcenies to the value of five shillings, and in what one to the value of forty shillings? 239, 240.
24. Of what two sorts is larceny from the person? 241.
25. How is the offence of privately stealing from a man’s person punished? 241.
26. What three requisites are there to the offence of open and violent larceny from the person, or robbery; and how, and in whom, is it now in all cases punished? 241-243.
27. What is the malicious mischief which the law considers as a public crime? 243, 244.
28. What is enacted by statute 22 Hen. VIII. c. 11 as to destroying the powdike in the fens of Norfolk and Ely; what offence is it to destroy the sea-banks, river-banks, public navigations, and bridges erected by virtue of many acts of parliament; what does the statute 43 Eliz. c. 13 enact for preventing rapine on the northern borders, and what is blackmail; what is enacted by the statutes 22 & 23 Car. II. c. 7 as to burning or destroying corn, hay, &c., or killing cattle; 4 & 5 W. and M. c. 23 as to burning on any waste between Candlemas and midsummer; 1 Anne, st. 2, c. 9 and 4 Geo. I. c. 12 as to destroying ships to the prejudice of the owners and insurers; 12 Anne, st 2, c. 18 as to damaging ships in distress; 1 Geo. I. c. 48 as to setting on fire underwood; 6 Geo. I. c. 23 as to defacing the garments of persons passing in the streets; by the Waltham black-act, extended to what by 9 Geo. III. c. 29; by 6 Geo II. c. 37 and 10 Geo. II. c. 32 as to the cutting down banks, cutting hop-binds, or firing coal-mines; 11 Geo. II. c. 22 as to deterring buyers of corn, seizing corn-carriages or horses, or spoiling corn; 28 Geo. II. c. 19 as to firing furze in any forest or chase; 6 Geo. III. c. 36 & 48 and 13 Geo. III. c. 33 as to destroying trees or plants; 9 Geo. III. c. 29 as to the destroying mine-engines or enclosure-fences; and 13 Geo. III. c. 38 as to destroying the Plate-Glass Company’s property? 243-246.
29. What is forgery, or the crimen falsi? 247.
30. What forgeries have been capitally punished by a multitude of statutes since the Revolution, when paper credit was first established? 248, 249.
31. What do several statutes of Geo. III. enact as to forgeries of standard plate-marks, frauds on the stamp-duties, counterfeiting the Plate-Glass Company’s seal, and forging the superscription of a letter in order to avoid the payment of the postage? 248, 249.
32. What is enacted by statute 2 Geo. II. c. 25 as to the forgery of deeds, wills, notes, &c.; and by statutes 7 Geo. II. c. 22 and 18 Geo. III. c. 18 as to acceptances of bills of exchange, or the number or principal sum of any accountable receipt for any security for money, or any order for the payment of money for the delivery of goods? 249, 250.
Of the Means of preventing Offences.
1.How may crimes and misdemeanours be prevented? 251.
2. In what does this security consist? 252, 253.
3. Who may demand it; to whom may it be granted; what is a writ called a supplicavit; and how ought feme-coverts and infants to find security? 253, 254.
4. In what four ways may a recognizance be discharged? 254.
5. For what causes is a recognizance for the peace grantable; what is called swearing the peace against another; and what if the party do not find such sureties as the justice shall require? 254, 255.
6. How may such recognizance be forfeited; when does a trespass upon the lands or goods of another, and when do mere reproachful words, forfeit such recognizance? 255, 256.
7. Whom are the justices empowered by the statute 34 Edw. III. c. 1 to bind over to their good abearance, or behaviour, towards the king and his people; who are holden to be comprised under the general words of this expression; and what if the justice commit a man for want of sureties? 256.
8. How may such recognizances be forfeited? 257.
Of Courts of a Criminal Jurisdiction.
1.In discussing the method of inflicting punishments, what two things are to be considered? 258.
2. Of what two natures are the several courts or criminal jurisdiction? 258.
3. In what degree are these criminal courts independent of each other; and why are they so; and which are the twelve public ones, ranking them for this reason according to their dignity? 258, 259, 261, 265, 268, 269, 271, 273-275.
4. Who are tried by the high court of parliament, how, and for what offences; and what is enacted by statute 12 & 13 W. III. c. 2 as to any plea of pardon under the great seal? 259-261.
5. For what is the court of the lord high steward of Great Britain instituted; how, and to whom, is the office now granted; what is the only plea a peer may plead in the court of king’s bench; what is the form of proceeding in case of a trial in the court of the lord high steward; and what does the statute 7 W. III. c. 3 enact as to the number of peers who shall vote on the trial? 261-263.
6. Where is the trial of an indicted peer properly during the session of parliament; and what different authority has the lord high steward when he sits in the high courts of parliament, and when he sits in his own court? 263.
7. Have bishops a right to sit in the court of the lord high steward; and what do they, in point of fact? 264, 265.
8. What is the cognizance of the crown side of the court of king’s bench; and what is the effect of the coming of this court into any county? 265.
9. What was the court of starchamber; and whither hath reverted all that was good and salutary of its jurisdiction? 266, 267.
10. When was the court of chivalry a criminal court; and what used to be its jurisdiction then? 268.
11. What criminal cognizance has the court of admiralty; and what is the method of its trials by statute 28 Hen. VIII. c. 15? 268, 269.
12. Before whom, and when, are the courts of oyer and terminer, and general gaol-delivery, held? 269.
13. By virtue of what five several authorities to the judges sit at what is usually called the issizes, two of which are of a civil nature and have been before explained? 269.
14. Who are bound to attend the third, which is the commission of the peace? 270.
15. To whom are the fourth and fifth [Editor: illegible word] mis-missions of oyer and terminer, and general gaol-delivery, directed; who are of the quorum, and what are they empowered to do? 270.
16. When are special commissions of oyer and terminer and gaol-delivery issued? 271.
17. Can a man act as judge, or other lawyer, in these commissions, within his own county, where he was born or has inhabited? 271.
18. When, and before whom, must the court of general quarter sessions of the peace be held; and what is its jurisdiction and mode of proceeding; is there any appeal from its orders upon motion; and who has the custody of its records or rolls? 271, 272.
19. What other quarter sessions are kept in most corporation towns; and in what one instance only have they, by statute 8 & 9 W. III. c. 30, the same authority as the general quarter sessions of the county; and for what purposes, in both corporation towns and counties, is a special or petty session held, by whom? 272, 273.
20. What is the sheriff’s tourn, or rotation; and when is it held? 273.
21. What is the court-leet, or view of frankpledge; when, and before whom, is it held; whence is its origin; what is the jurisdiction of both the sheriff’s tourn and this court; who are obliged to attend them; what has occasioned them to grow into disrepute; and where hath their business greatly devolved? 273, 274.
22. What is the object of the jurisdiction of the court of the coroners? 274.
23. To what is the court of the clerk of the market incident; what is the object of its jurisdiction; whence is the officer called the clerk; and what punishments has he authority to inflict? 275.
24. What are the three private or special courts of criminal jurisdiction? 276, 277.
25. For what purpose was the court of the lord steward, treasurer, or comptroller of the king’s household instituted by statute 3 Hen. VII. c. 14; and what is the course of its proceedings? 276.
26. For what purpose was the court of the lord steward of the king’s household, or, in his absence, of the treasurer, comptroller, and steward of the marshalsea, erected by statute 33 Hen. VIII. c. 12; and what is the course of its proceedings? 276.
27. What is the jurisdiction of the criminal courts of the two universities, or their chancellors’ courts; what is the jurisdiction of the court of the lord high steward of the university (of Oxford, by charter of 7 June, 2 Hen. IV., confirmed by statute 13 Eliz. c. 29); by whom must he be nominated and approved; and what is the course of proceeding when any indictment is found against any person privileged by the university? 277, 278.
Of Summary Convictions.
1.Into what two kinds are the proceedings in the courts of criminal jurisdiction divisible? 280.
2. What is meant by a summary proceeding; and what are the three branches of summary proceedings? 280-283.
3. By whom are all trials of offences and frauds contrary to the laws of excise and other branches of the revenue determined? 281.
4. What offences are punished in a summary way by justices of the peace; and to what three mischievous effects does the system give rise? 281, 282.
5. What is the process of these summary convictions; but what check has the common law thrown upon them which is now held to be an absolute requisite to them? 282, 283.
6. Of what two sorts are the contempts which are immemorially punished in the summary way of attachment by the superior courts of justice? 283.
7. Of what seven kinds are the principal instances of either sort? 284, 285.
8. Why is the attachment for the species of contempt arising from the disobedience to any rule or order of court by parties to any proceeding not affected by a general act of pardon; and how may obedience, by statute 10 Geo. III. c. 50, be enforced against any person having privilege of parliament? 285.
9. What does the statute of Westminster 2, 13 Edw. I. c. 39, ordain as to resistance of the process of the king’s courts? 286.
10. What if the contempt be committed in the face of the court; and what is the course of proceeding in matters that arise at a distance? 286, 287.
11. What if the party refuse to answer the interrogatories upon oath of the court? 287.
12. What if the party can clear himself upon oath; but what if he perjure himself? 287.
1.Under what twelve general heads, following each other progressively, may the regular and ordinary proceedings in the courts of criminal jurisdiction be distributed? 289.
2. What is arrest; who are liable to it in criminal cases; what charges will justify it; and in what four ways may it be made? 289.
3. By whom may a warrant be granted, and in what cases ordinarily; upon what only should it be granted; what is requisite to its legality; what is a special, and what a general, warrant; and when, by statute 24 Geo. II. c. 44, is the officer who executes a warrant indemnified? 290, 291.
4. Whither does a warrant from a justice of the tourt of king’s bench extend; and where is it teste’d, or dated? 291.
5. But what must take place before the warrant of a justice of the peace in one county can be executed in another; and what is enacted on this subject by statute 13 Geo. III. c. 31? 291, 292.
6. By what five officers may arrests be executed without warrant? 292.
7. When is any private person bound to make an arrest, on what pain; and what is he justified in doing in order to such arrest; but what if the arrest be only upon suspicion? 293.
8. What is arrest by hue (from huer, to shout) and cry (hutesium et clamor); what does the statute of Winchester, 13 Edw. I. c. 1 & 4, direct relative to this matter; what is the foundation of an action against the hundred in case of any loss by robbery; what does the statute 27 Eliz. c. 13 enact as to the sufficiency of hue and cry; and what that of 8 Geo. II. c. 16 if an officer refuse or neglect to make it; by whom may it be raised; what powers has the constable in its prosecution; and what if it be wantonly and maliciously raised without cause? 293, 294.
9. What rewards and immunities are bestowed on such as apprehend felons, by statutes 4 & 5 W. and M. c. 8 and 8 Geo. II. c. 16, as to highwaymen; by statutes 6 & 7 W. III. c. 17 and 15 Geo. II. c. 28 as to offenders against the coinage, by statutes 10 & 11 W. III. c. 23 and 5 Anne, c. 31 as to burglars; by statute 6 Geo. I. c. 23 as to helpers of others to their stolen goods, for reward; by statutes 14 Geo. II. c. 6 and 15 Geo. II. c. 34 as to sheep-stealers; and by statutes 16 Geo. II. c. 15 and 8 Geo. III. c. 15 as to premature returners from transportation? 295.
Of Commitment and Bail.
1.What is the justice before whom a prisoner is brought bound to do by statute 2 & 3 Ph. and M. c. 10; and in what cases only is it lawful totally to discharge him? 296.
2. When must he be committed to prison; and when ought bail to be taken? 296, 297.
3. What offence is it by the common law, as well as by the statute Westminster 1 and the habeas corpus act, to refuse or delay to bail any person bailable; and what is expressly declared as to excessive bail by statute 1 W. and M. st. 2, c. 1? 297.
4. On the other hand, what if the magistrate take insufficient bail? 297.
5. Upon what ten accusations are persons clearly not admissible to bail by the justices? 298, 299.
6. Upon what three accusations do persons seem to be in the discretion of the justices whether bailable or not? 299.
7. Upon what three accusations must persons be bailed upon offering sufficient security? 299.
8. But who may bail for any crime whatsoever, except only persons committed by whom? 299, 300.
9. This imprisonment being only for safe custody, what is the gaoler not justified in doing? 300.
Of the several Modes of Prosecution.
1.In what two ways are offenders prosecuted, or formally accused? 301.
2. By one of what two proceedings is the former way of prosecution? 301.
3. What is a presentment, properly speaking? 301.
4. What is an inquisition of office; and of what two kinds? 301, 302.
5. What is an indictment? 302.
6. Of whom are the grand jury composed; by whom are they instructed, or charged; and what evidence only are they to hear? 302, 303.
7. In what case only can the grand jury inquire of a fact done out of that county for which they are sworn; and what is enacted by the statute 2 & 3 Edw. VI. c. 24 when a man is wounded in one county and dies in another; by statute 2 Geo. II. c. 21 if the stroke or poisoning be in England and the death out of it, or vice versâ; by several statutes of Hen. VIII. and Edw. VI. where treason is committed out of the realm; by two statutes of Hen. VIII. as to offences against the coinage committed in Wales; by statute 33 Hen. VIII. c. 23 as to trials for murder by the king’s special commission; by statute 10 & 11 W. III. c. 25 as to capital crimes committed in Newfoundland; by statute 9 Geo. I. c. 22 as to offences against the black-act; by statutes 8 Geo. II. c. 20 and 13 Geo. III. c. 84 as to felonies in destroying turnpikes or river-works; by statute 26 Geo. II. c. 19 as to stealing from vessels wrecked or in distress; by statute 12 Geo. III. c. 24 as to destroying the king’s ships out of this realm; and by statute 13 Geo. III. c. 63 as to misdemeanours committed in India? 303, 305.
8. In what cases is the offence to complete in two counties or parts of the kingdom, that the offender may be indicted in either? 305.
9. What do the grand jury if, having heard the evidence, they think the accusation groundless; may a fresh bill be preferred; and what do they if they be satisfied of the truth of the accusation? 305.
10. But what number of the grand jury must agree in order to find a bill? 306.
11. What three things must be precisely and sufficiently ascertained in an indictment? 306.
12. What is enacted by statute 1 Hen. V. c. 5 as to the identification of the person; in what case is a mistake in the time and place not held to be material; but when is it very material that the indictment should name the time? 306.
13. In what crimes must particular words of art be used which are so appropriated by law to express the precise ideas which it entertains of the offence that no other words, however synonymous they may seem, are capable of doing it? 307.
14. In what cases, in indictments for murder, need not the length and depth of the wound be expressed; and when is it necessary that the thing which is the subject or instrument of the offence should be expressed? 307.
15. By one of what two proceedings is the method of prosecution without any previous finding by a jury? 308, 312.
16. What was the proceeding when a thief was taken with the mainour; and when does a similar process remain to this day? 307, 308.
17. Of what two sorts are informations; and what are the limitations of prosecutions upon penal statutes, by statute 31 Eliz. c. 5? 308.
18. Of what two kinds are the informations which are exhibited in the name of the king alone; by whom are they respectively filed; what are their respective objects; and by whom must they be tried, and by whom punished? 308, 309.
19. But to what are these informations confined? 310.
20. What is enacted by statute 4 & 5 W. and M. c. 18 as to informations exhibited by the master of the crown-office; but what as to informations at the king’s own suit, filed by the attorney-general? 311, 312.
21. Is there not still another species of information? 312.
22. What is the method of criminal prosecution which is merely at the suit of the subject by appeal; and why has it fallen into disuse? 312, 313.
23. What is the origin of an appeal; and what was a weregild? 313, 314.
24. What are the only two appeals now in force? 314.
25. For what crimes against the parties themselves may appeals be instituted; what is the only crime against one’s relation for which an appeal can be brought; and by what relations only can this be brought? 314.
26. What if the wife marry again, before pending, or after judgment of her appeal; when shall the heir, and when shall the wife, not have the appeal; what if there be no wife, and the heir be accused of the murder; and within what time, by the statute of Gloucester, must all appeals of death be sued? 314, 315.
27. If the appellee be acquitted, can he be afterwards indicted for the same offence; and if a man be acquitted on an indictment of murder, or found guilty, and pardoned by the king, what, in strictness, ought to happen, by virtue of the statute 3 Hen. VII. c. 1; but what if he have been found guilty of manslaughter on an indictment, and have had the benefit of clergy and suffered the judgment of the law? 315.
28. What shall the appellor suffer, by virtue of the statute of Westminster 2, if the appellee be acquitted? 316.
29. If the appellee be found guilty, what judgment shall he suffer, with what remarkable difference from the consequences of a conviction by indictment? 316.
Of Process upon an Indictment.
1.If the offender have fled, or secrete himself, in capital cases, or have not, in smaller misdemeanours, been bound over to appear at the assises or sessions, may an indictment be preferred against him in his absence; can he be tried although he do not personally appear; and what is the express provision of statute 28 Edw. III. c. 3? 318.
2. What is the proper process to bring in an offender, or an indictment for any petty misdemeanour or on a penal statute? 318.
3. What if, by the return to such process, it appear that the party hath lands in the county; and what if the sheriff return that he hath none in his bailiwick? 318, 319.
4. But what happens on indictments for treason or felony; and what is now the usual practice in the case of misdemeanours? 319.
5. When shall the offender be put in exigent, in order to his outlawry; and what is the form and consequence of this proceeding? 319.
6. What is the punishment for outlawries upon indictments for misdemeanours; but to what does an outlawry in treason or felony amount? 319.
7. Who may arrest an outlaw, on a criminal prosecution; and when is the whole outlawry illegal and may be reversed? 320.
8. When may a writ of certiorari facius be had; what is its effect; and for what four purposes is this frequently done? 320, 321.
9. At whose instance may a certiorari be granted; and when is it generally refused? 321.
10. When, and how, must indictments found by the grand jury against a peer, or in places of exclusive jurisdiction, be delivered into the court of parliament, or into that of the lord high steward, or to the courts of such exclusive jurisdiction? 321.
Of Arraignment and its Incidents.
1.What is arraignment (ad rationem ponere; in French, ad reson, or, abbreviated, à resne)? 322.
2. Why is the prisoner called upon to hold up his hand; and what if he refuse to do so? 323.
3. In what cases, by statute 1 Anne, c. 9, may the accessory be proceeded against as if the principal felon had been attainted; and why? 324.
4. One of what two circumstances is incident to every arraignment? 324.
5. In what three cases is a prisoner said to stand mute? 324.
6. What ought the court to do if the prisoner say nothing; and what if he appear to be dumb ex visitatione Dei, in which case, can judgment of death be given against him? 324, 325.
7. But what hath long been clearly settled if he be found to be obstinately mute, in high treason, petit larceny, and all misdemeanours; and what, by the ancient law, in appeals or indictments for other felonies or petit treason? 325.
8. What was trina admonitio; was the benefit of clergy allowed to an obstinate mute; and what was the sentence of peine (prisone) forte et dure? 325, 327.
9. Was the trial by rack ever attempted to be introduced into England? 326.
10. To what did standing mute amount, in all cases, by the common law; did the prisoner derive any advantage from suffering death by the sentence of peine forte et dure over that of judgment upon trial; and what was enacted in abolition of this sentence by statute 12 Geo. III. c. 20? 328, 329.
11. What is the consequence of the prisoner’s simple confession of the indictment? 329.
12. But what is confession by way of approvement; who is the approver or prover, probator, and who is the appellee; in what offences only can an approvement be; to what does it amount; and what if the appellee be acquitted? 329, 330.
13. Why has the admission of approvements been long disused by courts of justice; and how is all the good arising from the method of approvements provided for by several statutes in the cases of coining, robbery, burglary, house-breaking, horse-stealing, and larceny to the value of 5s. from shops, stables, &c., and by statute 29 Geo. II. c. 30 in case of metal-stealing? 330, 331.
14. What is the usual practice, too, of justices of the peace as to admitting what is generally termed king’s evidence? 331.
Of Plea and Issue.
1.What is the plea of the prisoner; in what cases does he plead; and of what five kinds is the plea? 332.
2. What was the plea of sanctuary; when might a criminal claim sanctuary; what did it superinduce; and when was the whole privilege abolished? 332, 333.
3. Was there not another declinatory plea, which was used to be pleaded before trial or conviction? 333.
4. What is a plea to the jurisaiction; and when may it be made? 333.
5. When is a demurrer to the indictment incident to criminal cases; what if the point of law be adjudged against the prisoner; and why are demurrers to indictments seldom used? 333, 334.
6. For what principally is a plea in abatement; but why, in the end, does little advantage accrue to the prisoner by means of these dilatory pleas? 334, 335.
7. What are special pleas in bar; of what four kinds as applicable to both appeals and indictments? 335.
8. Upon what universal maxim of the common law is the plea of autrefoits acquit grounded; is an acquittal on an appeal a good bar to an indictment on the same offence, and vice versâ, taking into consideration what was enacted by the statute 3 Hen. VII. c. 1 to prevent the practice of not trying any person on an indictment of homicide till after the year and day within which appeals may be brought were past, by which time it often happened that the witnesses died or the whole was forgotten? 335, 336.
9. When, and of what, is the plea of autrefoits convict a good plea in bar? 336.
10. Of what is the plea of autrefoits attaint a good plea in bar; and wherefore does it differ from the former two pleas? 336.
11. But what four exceptions are there to this general rule, wherein, cessante ratione, cessat et ipsa lex; and from these instances what invariable requisite to the validity of a plea of autre foits attaint may we collect? 336, 337.
12. What is one advantage that attends pleading a pardon in bar or in arrest of judgment before sentence is past, which gives it by much the preference to pleading it after sentence or attainder? 337.
13. Wherein do special pleas in bar differ in criminal prosecutions and in civil actions, and why; and when a prisoner’s plea in bar is found or adjudged against him, what shall he have; for what is the only plea in consequence whereof death can be inflicted? 338.
14. In cases of what indictments can there be no special justification put in by way of plea, and why; and why is the general issue not guilty, non culpabilis or nient culpable, the most advantageous plea for a prisoner? 338, 339.
15. How does the commentator explain the abbreviations of “non cul.,” which was formerly used to be written upon the minutes when the prisoner had pleaded not guilty, and “cul. prit.,” the replication on behalf of the king, by which issue was joined, and which, from the circumstance of the clerk of the arraigns immediately inquiring of the prisoner, “cul prit, how wilt thou be tried?” is commonly understood as if he had fixed an opprobrious name on the prisoner? 339, 340.
16. But what is Mr. J. Christian’s conjecture as to the word prit? See his note to this chapter.
17. To what only has this form of inquiry reference at present; what can be the only trial upon indictments since the abolition of ordeal; and therefore what if the prisoner refuse to put himself upon the inquest in the usual form? 340, 341.
18. When the prisoner has put himself upon his trial, (and in what words is this done?) what does the clerk answer? 341.
Of Trial and Conviction.
1.What was trial by ordeal; of what two sorts; and what when they were performed by deputy? 342, 343.
2. How was fire-ordeal performed? 343.
3. How was water-ordeal; and in what practice may relics of it be traced? 343.
4. How was this trial abolished? 345.
5. What was trial by the corsned? 345.
6. In what criminal cases may the trial by battel be demanded; what is the difference between this trial, on a writ of right, and on these criminal cases; and therefore who may counterplead and refuse the wager of battel, and compel the other party to put himself upon the country; and when may the crime itself be sufficient cause of such refusal? 346, 347.
7. Wherein do the oaths of the two combatants differ in waging battel upon appeals, and upon writs of right? 347, 348.
8. When shall a peer be tried by the court of parliament or the lord high steward, and when by a jury; and in what two things only does the trial by these courts differ from the trial per patriam, or by jury? 348, 349.
9. What is the sheriff’s duty when a prisoner, on his arraignment, has pleaded not guilty, and, for his trial, hath put himself upon the country, which country the jury are; what if the proceedings are before the court of king’s bench, and then where is the trial had; and what before commissioners of oyer and terminer and gaol-delivery? 350, 351.
10. What is customary when persons indicted of smaller misdemeanours have pleaded not guilty or traversed the indictment? 351.
11. In cases of high treason (except in counterfeiting the king’s coin or seals, as much of the latter act as relates to which is repealed by statute 6 Geo. III. c. 53) or misprision of treason, what is enacted by statutes 7 W. III. c. 3 and 7 Anne, c. 21? 351, 352.
12. By whom, and what kind, may challenges of jurors be made when the trial is called on? 352.
13. What are challenges for cause; and in criminal, or at least in capital, cases, what other species of challenge is allowed to the prisoner, and for what two reasons? 353.
14. What is enacted as to the denial of this privilege to the king, by statute 33 Edw. I. st. 4? 353.
15. But what is the boundary of the prisoner’s peremptory challenges by the common law; and how does it deal with one who peremptorily challenges beyond that boundary? 354.
16. But, by statute 22 Hen. VIII. c. 14, how many peremptory challenges can any person arraigned for felony be permitted to make; and what if the prisoner challenge more than that number? 354.
17. May a tales be awarded in criminal prosecutions? 354, 355.
18. What is done when the jury is sworn, if it be a cause of any consequence; but when only shall counsel be allowed a prisoner upon his trial, upon the general issue, in any capital crime, and upon what principle? 355.
19. But for what purpose do the judges never scruple to allow a prisoner counsel; and what is directed by statute 7 W. III. c. 3 and 20 Geo. II. c. 30, lest this indulgence should be intercepted by superior influence, in the case of state criminals? 355, 356.
20. In what five leading points, by several statutes and resolutions, has a difference been made between civil and criminal evidence? 356, 358, 359.
21. What hath been holden in the construction of the statute 7 W. III. c. 3, by which it is enacted that the confession of the prisoner, which shall not countervail the necessity of proof of treasons by two witnesses, must be in open court? 357.
22. What two rules does Sir Matthew Hale lay down as to admitting presumptive evidence cautiously? 359.
23. What was declared by statute 1 Anne, st. 2, c. 9 as to witnesses for the prisoner? 360.
24. What is the difference between the verdict in civil and criminal cases? 360.
25. What if the verdict be notoriously wrong; and what hath been done in many instances where, contrary to evidence, the jury have found the prisoner guilty? 361.
26. What if the jury find the prisoner not guilty; but what is he said to be if the jury find him guilty? 361, 362.
27. In what two ways may conviction accrue? 362.
28. When shall the prosecutor be allowed the expenses of prosecution and a compensation for his trouble and loss of time, out of what; and when shall all persons appearing upon recognizance, or subpœna, to give evidence, be paid their charges, and an allowance for their trouble and loss of time, by several late statutes? 362.
29. When shall the prosecutor have restitution of his goods, by statute 21 Hen. VIII. c. 11, out of what, and by what process? 362, 363.
30. Why does this writ of restitution reach the stolen goods notwithstanding they have been sold to a third person in market-overt; when may the party robbed regain the goods without such writ of restitution; and what if the felon be convicted and pardoned, or be allowed his clergy? 363.
31. When, and why, does the court permit the defendant to speak with the prosecutor before judgment, and, if the prosecutor then declare himself satisfied, inflict but a trivial punishment; but when should this practice never be suffered, and why? 363, 364.
Of the Benefit of Clergy.
1.After trial and conviction, what is the principal intervening circumstance that suspends or arrests judgment? 365.
2. In what had clergy, the privilegium clericale, or, in common speech, the benefit of clergy, its original; and of what two principal kinds were the exemptions which were granted to the church? 365.
3. When was it finally settled in the reign of Hen. VI. that the prisoner might claim his benefit of clergy? 366.
4. In process of time, who was accounted a clerk, or clericus; and what distinction was therefore drawn by statute 4 Hen. VII. c. 13, and virtually restored, after a temporary abolition by two statutes of Hen. VIII., by statute 1 Edw. VI. c. 12, which enacted what? 367.
5. What became of the offenders after they had had the benefit of their clergy and were discharged from the sentence of the law in the king’s courts? 368.
6. But what happened when, upon very heinous and notorious circumstances of guilt, the temporal courts delivered over to the ordinary the convicted clerk, absque purgatione facienda? 369.
7. For avoiding these perjuries and abuses, what does the statute 18 Eliz. c. 7 enact; and how long did the law continue thus altered only, by an indulgence to whom of the benefit of clergy without the test? 369, 370.
8. What was enacted by statute 5 Anne, c. 6 upon the considerations that learning was no extenuation of guilt, and that the lenity of clergy was an encouragement to commit the lower degress of felony; in what cases did the statutes 4 Geo. I. c. 11 and 6 Geo. I. c. 23 give the courts a discretionary power to commute the penalties of burning in the hand, or whipping, for transportation for seven years? 370.
9. But now, by statute 19 Geo. III. c. 74, for what have the judges a discretionary power to commute the penalty of transportation (with what exception?); what if the offenders escape a first, and what if a second, time; and for what (with what exceptions?) may the court commute the penalty of burning in the hand? 371, 372.
10. To what persons is the benefit of clergy to be allowed at this day? 373.
11. For what crimes is the benefit of clergy to be allowed? 374.
12. What is declared by statute 28 Hen. VIII. c. 15 as to the allowance of the benefit of clergy in the marine law? 373.
13. Unless what is clergy now allowable in all felonies, whether new-created or by common law? 373.
14. Where clergy is taken away from the principal, is it from the accessory? 373.
15. Where clergy is taken away from the offence, is a principal in the second degree excluded from his clergy? 373.
16. Where it is taken away only from the person committing the offence, are his aiders and abettors excluded from the clergy? 373.
17. What are the consequences of allowing this benefit of clergy, which affect the present interest and future capacity of the party, whether commoner and layman, or peer and clergyman? 374.
18. What does he forfeit by his conviction; and to what is he restored by the burning, its substitute, or pardon? 374.
19. Of what felonies is he not discharged by the burning, its substitute, or pardon, by statutes 8 Eliz. c. 4 and 18 Eliz. c. 7? 374.
Of Judgment and its Consequences.
1.What, upon a capital charge, is the prisoner asked by the court when the jury have brought in their verdict guilty; and what happens in case the defendant be found guilty of a misae meanour, the trial of which happens in his absence? 375.
2. But, whenever he appears in person, what may he offer in arrest or stay of judgment at this period? 375.
3. Is not a defective indictment aided by a verdict, as defective pleadings in civil cases are? 375.
4. What is the effect of a pardon when pleaded in arrest of judgment; and what when it is not pleaded till after sentence? 376.
5. What if all motions in arrest of judgment fail? 376.
6. Of what parts of capital judgments has the humanity of the English nation authorized an almost general mitigation? 376, 377.
7. How far is the punishment for every offence ascertained by our English law? 377, 378.
8. What has the bill of rights declared as to fines and punishments? 378, 379.
9. What has magna carta, c. 14, determined concerning amercements for misbehaviour by the suitors in matters of civil right; and what has it directed in order to ascertain this amercement? 379.
10. Who were affeerors; what is the difference between an amercement and a fine; what is the reason why fines in the king’s courts are frequently denominated ransoms; and what is holden where any statute speaks both of fine and ransom? 379, 380.
11. Upon judgment of either of what two things, on a capital crime, shall a man be said to be attainted (attinctus, stained or blackened)? 380, 381.
12. What are the incapacities of a man attaint? 380.
13. What is the great difference between a man convicted and attainted? 381.
14. What are the two consequences of attainder? 381.
15. How is forfeiture twofold? 381.
16. How far backwards does forfeiture of real estates relate? 381.
17. What is forfeited from the wife, if the husband be attainted of treason, by the express provision of statute 5 & 6 Edw. VI. c. 11; and if the wife be so, shall the husband be tenant by the curtesy of the wife’s land? 381, 382.
18. But what if a traitor die before judgment pronounced, or be killed in open rebellion, or hanged by martial law? 382.
19. In what consideration is the natural justice of forfeiture, or confiscation of property, founded? 382.
20. What is provided in certain treasons relating to the coin; and, in order to abolish hereditary punishment entirely, what was enacted by statute 7 Anne, c. 21; and how was the operation of the indemnifying clauses in this statute still further suspended by statute 17 Geo. II. c. 39? 384, 385.
21. What does the offender forfeit in petit treason and felony; and what is called the king’s year, day, and waste? 385.
22. Do these forfeitures actually take place; are they incident to a felo de se; and how far backwards do they relate? 386.
23. To what two other instances besides those already spoken of does the forfeiture of the profits of land during life extend? 386.
24. When does the forfeiture of goods and chattels accrue? 386.
25. How is forfeiture for flight, on an accusation of treason, felony, or petit larceny, now looked upon? 386, 387.
26. What three remarkable differences are there between the forfeiture of lands and that of goods and chattels, the second as to outlawry, and the third as to its relation backwards; but what (particularly by statute 13 Eliz. c. 5) if a traitor’s or felon’s chattels be collusively, and not bonâ fide, parted with, merely to defraud the crown, and why? 387, 388.
27. What are the consequences of corruption of blood? 388.
28. In what offences is corruption of blood saved; what will be the virtual effect of the statute of 7 Anne (the operation of which is postponed by the statute 17 Geo. II.); but why will the corruption of blood still continue for many sorts of felony? 389.
Of Reversal of Judgment.
1.In what two ways may judgments, with their several consequences, be set aside? 390.
2. By what three means may a judgment and attainder be reversed? 390-392.
3. For what may a judgment be falsified, reversed, or avoided, without a writ of error; why cannot these matters be assigned for error in the superior court; and when may a diminution of the record be alleged? 390.
4. Where does a writ of error lie, and for what may it be brought? 391, 392.
5. On what are writs of error allowed to reverse judgment in case of misdemeanours; and how, in capital cases, to reverse attainders, when by whom are they generally brought? 392.
6. When is an act of parliament to reverse the attainder granted; and how is its effect different from that of a reversal by writ of error? 392.
7. What is the effect of falsifying or reversing an outlawry; and wherein does it differ from that of falsifying or reversing a judgment upon conviction? 392, 393.
8. Upon the latter event taking place, what if the party’s estates have been granted away by the crown? 393.
9. Is he liable to another prosecution for the same offence? 393.
Of Reprieve and Pardon.
1.What is a reprieve, from reprendre, to take back; and on what two accounts may it be? 394.
2. What is a reprieve ex arbitrio judicis; and when may it be granted or taken off? 394.
3. What is the first case of reprieve granted ex necessitate legis; and what must the judge direct in case the plea of pregnancy, in a woman capitally convicted, be made in stay of execution; when is it a sufficient stay; and how long? 395.
4. What if the woman have once had the benefit of this reprieve, and been delivered, and afterwards become pregnant again? 395.
5. What is the second cause of regular reprieve? 395, 396.
6. What is it the invariable rule to demand of the prisoner when any time intervenes between the attainder and the award of execution; and what if the party plead diversity of person, that he is not the same that was attainted, and the like? 396.
7. When only, in these collateral issues, shall time be allowed the prisoner to make his defence or produce his witnesses; and what is held as to challenges of the jury by the prisoner? 396.
8. What is declared by statute 27 Hen. VIII. c. 24 as to pardon? 397.
9. What offences may the king pardon, excepting what four? 398, 399.
10. What restriction is there that affects the prerogative of pardoning in case of parliamentary impeachments? 399, 400.
11. What must be the form of a complete irrevocable pardon; and what will be the effect of a warrant under the privy seal or sign-manual? 400.
12. What circumstance will vitiate the whole pardon? 400.
13. Will a pardon of all felonies pardon a conviction or attainder of felony? 400.
14. What is enacted by the statute 13 Ric. II. st. 2, c. 1 as to the pardon of treason, murder, or rape? 400.
15. Under these restrictions, how is it a general rule that a pardon shall be taken? 401.
16. What is a conditional pardon? 401.
17. What is the difference between a pardon by act of parliament, and by the king’s charter of pardon? 402.
18. When has a man waived the benefit of his pardon? 402.
19. What discretionary power does the statute 5 & 6 W. and M. c. 13 give the judges of the court over a criminal pleading pardon of felony? 402.
20. What is the effect of a pardon by the king? 402.
21. But what only can restore or purify the blood, if the pardon be not allowed till after attainder; yet when may the attainted’s son be his heir? 402.
1.By whom must execution be performed; and under what warrant in the court of the lord high steward, under what in the court of the peers in parliament, and under what at the assises? 403.
2. Within what time is the sheriff to do execution in the country; but what is the form of proceeding, and what is the warrant, in London, and what if the prisoner be tried at the bar of, or brought by habeas corpus into, the court of king’s bench? 404.
3. And, throughout the kingdom, what is enacted by 25 Geo. II. c. 37 in case of murder? 404.
4. Can the sheriff alter the manner of the execution, by substituting one death for another? 404.
5. May the king, or may he, remit any part of the sentence? 405.
6. What if, upon execution of judgment to be hanged by the neck till he is dead, the criminal revives? 406.
Of the Rise, Progress, and Gradual Improvements of the Laws of England.
1.What few points which bear a great affinity and resemblance to some of the modern doctrines of our English law may be collected from Cæsar’s account of the tenets and discipline of the ancient Druids in Gaul, who were sent over to Britain to be instructed? 408.
2. Why is it impossible to trace out when the several mutations of the common law were made; and whence the great variety of our ancient established customs? 408-410.
3. What did Alfred for the constitution and laws? 410, 411.
4. What was the Dane-lage, what the West-Saxon-lage, and what the Mercen-lage? 412.
5. What did Edgar; and what is the most probable original of the common law? 412.
6. What nine may be reckoned among the most remarkable of the Saxon laws? 412-414.
7. What five alterations in our laws did the Norman invasion work? 415-418.
8. What did William Rufus; and what did Henry I.? 420, 421.
9. What did Stephen? 421.
10. What did Henry II.; and what four things peculiarly merit the attention of the legal antiquary in the reign of this king? 421-423.
11. What did Richard I.? 423.
12. What did John and Henry III.; and what were he effects of magna carta and carta de foresta? 423-425.
13. What did Edward I.; to what principal fifteen general heads may the regulations of this king be reduced; and what is the best proof of the excellence of his constitutions? 425-427.
14. What did Edwards II. and III.? 428.
15. What was done from this time to that of Henry VII.; and what two things do we owe to the civil wars and disputed titles to the crown? 428, 429.
16. What was done by Henry VII.? 429, 430.
17. What did the Reformation effect; and what was done with regard also to our civil polity by Henry VIII.? 430, 431.
18. What did Edward VI. and Mary? 431, 432.
19. What did Elizabeth for the religious liberties of the nation; and what for the political? 432-435.
20. What did James I.? 436.
21. What did Charles I.? 436-438.
22. What was done upon the restoration of Charles II.? 438-440.
23. What has been done from the revolution in 1688 to the present time; and what have been the chief alterations of moment in the administration of private justice during that period? 440-442.
stereotyped by l. johnson & co. philadelphia.
[1 ] This averment is now rendered unnecessary. See 7 & 8 Geo. IV. c. 28, 5.
[2 ] See preceding note.
[3 ] Benefit of clergy and burning in the hand being now abolished, (see 6 Geo. IV. c. 25. 7 & 8 Geo. IV. s. 28,) this form will require alteration accordingly.