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Blackstone: Analysis and Contents of Vol. 2 of Commentaries on the Law of England

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Source: Sir William Blackstone, 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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ANALYSIS. BOOK III.—OF PRIVATE WRONGS.

  • CHAPTER I. Of the Redress of Private Wrongs by the mere Act of the Parties.... Page 2 to 16
    • 1. Wrongs are the privation of right; and are, I. Private. II. Public .......... 2
    • 2. Private wrongs, or civil injuries, are an infringement, or privation, of the civil rights of individuals, considered as individuals .............................. 2
    • 3. The redress of civil injuries is one principal object of the laws of England........ 3
    • 4. This redress is effected, I. By the mere act of the parties. II. By the mere operation of law. III. By both together, or suit in courts.............................. 3
    • 5. Redress by the mere act of the parties is that which arises, I. From the sole act of the party injured. II. From the joint act of all the parties.................... 3
    • 6. Of the first sort are, I. Defence of one’s self, or relations. II. Recaption of goods. III. Entry on lands and tenements. IV. Abatement of nuisances. V. Distress—for rent, for suit or service, for amercements, for damage, or for divers statutable penalties,—made of such things only as are legally distrainable; and taken and disposed of according to the due course of law. VI. Seizing of heriots, &c.. 3-15
    • 7. Of the second sort are, I. Accord. II. Arbitration.............................. 15-16
  • CHAPTER II. Of Redress by the mere Operation of Law .............................. 18 to 21
    • 1. Redress, effected by the mere operation of law, is, I. In case of retainer; where a creditor is executor or administrator, and is thereupon allowed to retain his own debt. II. In the case of remitter; where one who has a good title to lands, &c. comes into possession by a bad one, and is thereupon remitted to his ancient good title, which protects his ill-acquired possession.............................. 18-21
  • CHAPTER III. Of Courts in general .................... 22 to 25
    • 1. Redress that is effected by the act both of law and of the parties is by suit or action in the courts of justice .......... 22
    • 2. Herein may be considered, I. The courts themselves. II. The cognizance of wrongs, or injuries, therein. And of courts, I. Their nature and incidents. II. Their several species.................... 23
    • 3. A court is a place wherein justice is judicially administered, by officers delegated by the crown: being a court either of record, or not of record .......... 23-24
    • 4. Incident to all courts are, a plaintiff, defendant, and judge: and with us, there are also usually attorneys, and advocates or counsel, viz., either barristers, or serjeants at law .............................. 25
  • CHAPTER IV. Of the Public Courts of Common Law and Equity .............................. 30 to 60
    • 1. Courts of justice, with regard to their several species, are, I. Of a public or general jurisdiction throughout the realm. II. Of a private or special jurisdiction .............................. 30
    • 2. Public courts of justice are, I. The courts of common law and equity. II. The ecclesiastical courts. III. The military courts. IV. The maritime courts .......... 30
    • 3. The general and public courts of common law and equity are, I. The court of piepoudre. II. The court-baron. III. The hundred court. IV. The county court. V. The court of Common Pleas. VI. The court of King’s Bench. VII. The court of Exchequer. VIII. The court of Chancery. (Which two last are courts of equity as well as law.) IX. The courts of Exchequer-Chamber. X. The house of Peers. To which may be added, as auxiliaries, XI. The courts of Assize and Nisi Prius .................... 32-34
  • CHAPTER V. Of Courts Ecclesiastical, Military, and Maritime .............................. 67-68
    • 1. Ecclesiastical courts, (which were separated from the temporal by William the Conqueror,) or courts Christian, are, I. The court of the Archdeacon. II. The court of the Bishop’s Consistory. III. The court of Arches. IV. The court of Peculiars. V. The Prerogative Court. VI. The court of Delegates. VII. The court of Review.............................. 62-68
    • 2. The only permanent military court is that of chivalry; the courts-martial annually established by act of parliament being only temporary.................... 68
    • 3. Maritime courts are, I. The court of Admiralty and Vice-Admiralty. II. The court of Delegates. III. The lords of the Privy Council, and others authorized by the king’s commission, for appeals in prize-causes.............................. 68
  • CHAPTER VI. Of Courts of a Special Jurisdiction ... 71 to 85
    • 1. Courts of a special or private jurisdiction are, I. The forest courts; including the courts of attachments, regard, sweinmote, and justice-seat. II. The court of Commissioners of Sewers. III. The court of policies of assurance. IV. The court of the Marshalsea and the Palace Court. V. The courts of the principality of Wales. VI. The court of the duchy-chamber of Lancaster. VII. The courts of the counties palatine, and other royal franchises. VIII. The stannary courts. IX. The courts of London, and other corporations:—to which may be referred the courts of requests, or courts of conscience; and the modern regulations of certain courts-baron and county courts. X. The courts of the two Universities.............................. 71-85
  • CHAPTER VII. Of the Cognizance of Private Wrongs.... 85 to 114
    • 1. All private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of common law .............................. 86
    • 2. Injuries cognizable in the ecclesiastical courts are, I. Pecuniary. II. Matrimonial. III. Testamentary.................... 87-88
    • 3. Pecuniary injuries, here cognizable, are, I. Subtraction of tithes. For which the remedy is by suit to compel their payment, or an equivalent; and also their double value. II. Non-payment of ecclesiastical dues. Remedy: by suit for payment. III. Spoliation. Remedy: by suit for restitution. IV. Dilapidations. Remedy: By suit for damages. V. Non-repair of the church, &c.; and non-payment of church-rates. Remedy: by suit to compel them .............................. 88-92
    • 4. Matrimonial injuries are, I. Jactitation of marriage. Remedy: by suit for perpetual silence. II. Subtraction of conjugal rights. Remedy: by suit for restitution. III. Inability for the marriage state. Remedy: by suit for divorce. IV. Refusal of decent maintenance to the wife. Remedy: by suit for alimony .............................. 92-95
    • 5. Testamentary injuries are, I. Disputing the validity of wills. Remedy: by suit to establish them. II. Obstructing of administrations. Remedy: by suit for the granting them. III. Subtraction of legacies. Remedy: by suit for the payment.............................. 95-98
    • 6. The course of proceedings herein is much conformed to the civil and canon law: but their only compulsive process is that of excommunication; which is enforced by the temporal writ of significavit or de excommunicato capiendo.............................. 98-103
    • 7. Civil injuries, cognizable in the court military, or court of chivalry, are, I. Injuries in point of honour. Remedy: by suit for honourable amends. II. Encroachments in coat-armour, &c. Remedy: by suit to remove them. The proceedings are in a summary method .............................. 103-106
    • 8. Civil injuries cognizable in the courts maritime are injuries in their nature of common-law cognizance, but arising wholly upon the sea, and not within the precincts of any county. The proceedings are herein also much conformed to the civil law .............................. 106-109
    • 9. All other injuries are cognizable only in the courts of common law: of which in the remainder of this book.......... 109-114
    • 10. Two of them are, however, cognizable by these, and other, inferior courts; viz. I. Refusal, or neglect, of justice. Remedies: by writ of procedendo, or mandamus. II. Encroachment of jurisdiction. Remedy: by writ of prohibition .............................. 109-114
  • CHAPTER VIII. Of Wrongs, and their Remedies, respecting the Rights of Persons .......... 115 to 143
    • 1. In treating of the cognizance of injuries by the courts of common law, may be considered, I. The injuries themselves, and their respective remedies. II. The pursuits of those remedies in the several courts .............................. 115
    • 2. Injuries between subject and subject, cognizable by the courts of common law, are in general remedied by putting the party injured into possession of that right whereof he is unjustly deprived .............................. 115
    • 3. This is effected, I. By delivery of the thing detained to the rightful owner. II. Where that remedy is either impossible or inadequate, by giving the party injured a satisfaction in damages.............................. 116
    • 4. The instruments by which these remedies may be obtained are suits or actions; which are defined to be the legal demand of one’s right: and these are, I. Personal. II. Real. III. Mixed ... 116-118
    • 5. Injuries (whereof some are with, others without, force) are, I. Injuries to the rights of persons. II. Injuries to the rights of property. And the former are, I. Injuries to the absolute, II. Injuries to the relative, rights of persons....... 118-119
    • 6. The absolute rights of individuals are, I. Personal security. II. Personal liberty. III. Private property. (See Book I. Ch. I.) To which the injuries must be correspondent .............................. 119
    • 7. Injuries to personal security are, I. Against a man’s life. II. Against his limbs. III. Against his body. IV. Against his health. V. Against his reputation.—The first must be referred to the next book .............................. 119
    • 8. Injuries to the limbs and body are, I. Threats. II. Assault. III. Battery. IV. Wounding. V. Mayhem. Remedy: by action of trespass vi et armis, for damages .............................. 120
    • 9. Injuries to health, by any unwholesome practices, are remedied by a special action of trespass on the case, for damages .............................. 122
    • 10. Injuries to reputation are, I. Slanderous and malicious words. Remedy: by action on the case, for damages. II. Libels. Remedy: the same. III. Malicious prosecutions. Remedy: by action of conspiracy, or on the case, for damages.............................. 123
    • 11. The sole injury to personal liberty is false imprisonment. Remedies: I. By writ of, 1st, mainprize; 2dly, odio et atia; 3dly, homine replegiando; 4thly, habeas corpus; to remove the wrong. II. By action of trespass; to recover damages.............................. 127-138
    • 12. For injuries to private property, see the next chapter.
    • 13. Injuries to relative rights affect, I. Husbands. II. Parents. III. Guardians. IV. Masters.............................. 138
    • 14. Injuries to a husband are, I. Abduction, or taking away his wife. Remedy: by action of trespass de uxore rapta et abducta, to recover possession of his wife, and damages. II. Criminal conversation with her. Remedy: by action on the case, for damages. III. Beating her. Remedy: by action on the case, per quod consortium amisit, for damages.............................. 139
    • 15. The only injury to a parent or guardian, is the abduction of their children, or wards. Remedy: by action of trespass, de filiis, vel custodiis, raptis vel abductis; to recover possession of them, and damages.............................. 140-141
    • 16. Injuries to a master are, I. Retaining his servants. Remedy: by action on the case, for damages. II. Beating them. Remedy: by action on the case, per quod servitium amisit; for damages.............................. 142-143
  • CHAPTER IX. Of Injuries to Personal Property.. 144 to 166
    • 1. Injuries to the rights of property are either to those of personal, or real, property.............................. 144
    • 2. Personal property is either in possession, or in action.............................. 144
    • 3. Injuries to personal property in possession are, I. By dispossession. II. By damage, while the owner remains in possession.............................. 145
    • 4. Dispossession may be effected, I. By an unlawful taking. II. By an unlawful detaining.............................. 145
    • 5. For the unlawful taking of goods and chattels personal, the remedy is, I. Actual restitution; which (in case of a wrongful distress) is obtained by action of replevin. II. Satisfaction in damages: 1st, in case of rescous, by action of rescous, pound-breach, or on the case. 2dly, in case of other unlawful takings, by action of trespass, or trover.............................. 145-151
    • 6. For the unlawful detaining of goods lawfully taken, the remedy is also, I. Actual restitution, by action of replevin, or detinue. II. Satisfaction in damages; by action on the case, for trover and conversion.............................. 151
    • 7. For damage to personal property, while in the owner’s possession, the remedy is in damages, by action of trespass vi et armis, in case the act be immediately injurious, or by action of trespass on the case, to redress consequential damages.............................. 153
    • 8. Injuries to personal property, in action, arise by breach of contracts, I. Express. II. Implied.............................. 154
    • 9. Breaches of express contracts are, I. By non-payment of debts. Remedy: 1st, specific payment; recoverable by action of debt; 2dly, damages for non-payment; recoverable by action on the case. II. By non-performance of covenants. Remedy: by action of covenant, 1st, to recover damages, in covenants personal; 2dly, to compel performance in covenants real. III. By non-performance of promises, or assumpsits. Remedy: by action on the case, for damages.............................. 154-158
    • 10. Implied contracts are such as arise, I. From the nature and constitution of government. II. From reason and the construction of law.................... 159-162
    • 11. Breaches of contracts implied in the nature of government are by the non-payment of money which the laws have directed to be paid. Remedy: by action of debt, (which, in such cases, is frequently a popular, frequently a qui tam action,) to compel the specific payment; or sometimes by action on the case, for damages.............................. 159-162
    • 12. Breaches of contracts implied in reason and construction of law are by the non-performance of legal presumptive assumpsits: for which the remedy is in damages; by an action on the case, on the implied assumpsits. I. Of a quantum meruit. II. Of a quantum valebat. III. Of money expended for another. IV. Of receiving money to another’s use. V. Of an insimul computassent, on an account stated, (the remedy on an account unstated being by action of account.) VI. Of performing one’s duty, in any employment, with integrity, diligence, and skill. In some of which cases an action of deceit (or on the case, in nature of deceit) will lie.............................. 162-166
  • CHAPTER X. Of Injuries to Real Property; and first of Dispossession, or Ouster, of the Freehold.................... 167 to 197
    • 1. Injuries affecting real property are, I. Ouster. II. Trespass. III. Nuisance. IV. Waste. V. Subtraction. VI. Disturbance.............................. 167
    • 2. Ouster is the amotion of possession; and is, I. From freeholds. II. From chattels real.............................. 167
    • 3. Ouster from freeholds is effected by, I. Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. V. Deforcement.............................. 167
    • 4. Abatement is the entry of a stranger, after the death of the ancestor, before the heir.............................. 167
    • 5. Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion.............................. 169
    • 6. Disseisin is a wrongful putting out of him that is seised of the freehold........... 169
    • 7. Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth.............................. 171
    • 8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the possession.......... 172
    • 9. The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the detention. This is effected, I. By mere entry. II. By action possessory. III. By writ of right.............................. 174
    • 10. Mere entry on lands, by him who hath the apparent right of possession, will (if peaceable) devest the mere possession of a wrong-doer. But forcible entries are remedied by immediate restitution, to be given by a justice of the peace......... 175-179
    • 11. Where the wrong-doer hath not only mere possession, but also an apparent right of possession; this may be devested by him who hath the actual right of possession, by means of the possessory actions of writ of entry, or assise............. 179
    • 12. A writ of entry is a real action, which disproves the title of the tenant, by showing the unlawful means under which he gained or continues possession. And it may be brought, either against the wrongdoer himself; or in the degrees called the per, the per and cui, and the post...... 180
    • 13. An assise is a real action, which proves the title of the demandant, by showing his own, or his ancestor’s, possession. And it may be brought either to remedy abatements; viz. the assise of mort d’ancestor, &c.: or to remedy recent disseisins; viz. the assise of novel disseisin.......... 184-190
    • 14. Where the wrong-doer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature. As, I. Where such right of possession is gained by the discontinuance of tenant in tail. Remedy, for the right of property: by writ of formedon. II. Where gained by recovery in a possessory action, had against tenants of particular estates by their own default. Remedy: by writ of quod ei deforceat. III. Where gained by recovery in a possessory action, had upon the merits. IV. Where gained by the statute of limitations. Remedy, in both cases: by a mere writ of right, the highest writ in the law.............................. 190-197
  • CHAPTER XI. Of Dispossession, or Ouster, of Chattels Real.............................. 198 to 207
    • 1. Ouster from chattels real is, I. From estates by statute and elegit. II. From an estate for years.................... 198
    • 2. Ouster from estates by statute or elegit is effected by a kind of disseisin. Remedy: restitution, and damages; by assise of novel disseisin.................... 198
    • 3. Ouster from an estate for years is effected by a like disseisin or ejectment. Remedy: restitution and damages; I. By writ of ejectione firmæ. II. By writ of quare ejecit infra terminum.................... 199
    • 4. A writ of ejectione firmæ, or action of trespass in ejectment, lieth where lands, &c., are let for a term of years and the lessee is ousted or ejected from his term; in which case he shall recover possession of his term, and damages.................... 199
    • 5. This is now the usual method of trying titles to land, instead of an action real: viz., by, I. The claimant’s making an actual (or supposed) lease upon the land to the plaintiff. II. The plaintiff’s actual (or supposed) entry thereupon. III. His actual (or supposed) ouster and ejectment by the defendant. For which injury this action is brought, either against the tenant, or (more usually) against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on condition that the lease, entry, and ouster be confessed, and that nothing else be disputed but the merits of the title claimed by the lessor of the plaintiff.............................. 200-206
    • 6. A writ of quare ejecit infra terminum is an action of a similar nature; only not brought against the wrong-doer or ejector himself, but such as are in possession under his title.............................. 207
  • CHAPTER XII. Of Trespass.............................. 208 to 215
    • 1. Trespass is an entry upon, and damage done to, another’s lands, by one’s self, or one’s cattle; without any lawful authority, or cause of justification: which is called a breach of his close. Remedy: damages; by action of trespass quare clausum fregit: besides that of distress damage feasant. But, unless the title to the land come chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall recover no more costs than damages.............................. 208-215
  • CHAPTER XIII. Of Nuisance.............................. 216 to 219
    • 1. Nuisance, or annoyance, is any thing that worketh damage, or inconvenience; and it is either a public and common nuisance, of which in the next book; or, a private nuisance, which is any thing done to the hurt or annoyance of, I. The corporeal, II. The incorporeal, hereditaments of another.................... 216
    • 2. The remedies for a private nuisance (besides that of abatement) are, I. Damages; by action on the case (which also lies for special prejudice by a public nuisance.) II. Removal thereof, and damages; by assise of nuisance. III. Like removal, and damages; by writ of quod permittat prosternere .......... 219
  • CHAPTER XIV. Of Waste .............................. 223 to 229
    • 1. Waste is a spoil and destruction in lands and tenements, to the injury of him who hath, I. An immediate interest (as, by right of common) in the lands. II. The remainder or reversion of the inheritance 223
    • 2. The remedies, for a commoner, are, restitution, and damages; by assise of common: or, damages only; by action on the case .............................. 224
    • 3. The remedy for him in remainder, or reversion, is, I. Preventive: by writ of estrepement at law, or injunction out of Chancery; to stay waste. II. Corrective: by action of waste; to recover the place wasted, and damages.................... 225-229
  • CHAPTER XV. Of Subtraction .................... 230 to 235
    • 1. Subtraction is when one who owes services to another withdraws or neglects to perform them. This may be, I. Of rents, and other services, due by tenure. II. Of those due by custom................ 230
    • 2. For subtraction of rents and services due by tenure, the remedy is, I. By distress; to compel the payment, or performance. II. By action of debt. III. By assise. IV. By writ de consuetudinibus et servitiis; to compel the payment. V. By writ of cessavit; and, VI. By writ of right sur disclaimer—to recover the land itself.............................. 231-234
    • 3. To remedy the oppression of the lord, the law has also given, I. The writ of ne injuste vexes: II. The writ of mesne...... 234
    • 4. For subtraction of services due by custom, the remedy is, I. By writ of secta ad molendinum, furnum, torrale, &c.; to compel the performance, and recover damages. II. By action on the case; for damages only.................... 235
  • CHAPTER XVI. Of Disturbance.................... 236 to 252
    • 1. Disturbance is the hindering or disquieting the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it.............................. 236
    • 2. Disturbances are, I. Of franchises. II. Of commons. III. Of ways. IV. Of tenure. V. Of patronage.......... 236
    • 3. Disturbance of franchises is remedied by a special action on the case; for damages.............................. 236
    • 4. Disturbance of common is, I. Intercommoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress damage feasant; to compel satisfaction. II. Surcharging the common. Remedies: distress damage feasant; to compel satisfaction: action on the case; for damages: or, writ of admeasurement of pasture; to apportion the common;—and writ de secunda superoneratione; for the supernumerary cattle, and damages. III. Enclosure, or obstruction. Remedies: restitution of the common, and damages; by assise of novel disseisin, and by writ of quod permittat: or, damages only; by action on the case.................... 237-240
    • 5. Disturbance of ways is the obstruction, I. Of a way in gross, by the owner of the land. II. Of a way appendant, by a stranger. Remedy, for both: damages; by action on the case.................... 241
    • 6. Disturbance of tenure, by driving away tenants, is remedied by a special action on the case; for damages.................... 242
    • 7. Disturbance of patronage is the hinderance of a patron to present his clerk to a benefice; whereof usurpation within six months is now become a species............ 242
    • 8. Disturbers may be, I. The pseudo-patron, by his wrongful presentation. II. His clerk, by demanding institution. III. The ordinary, by refusing the clerk of the true patron.................... 244
    • 9. The remedies are, I. By assise of darrein presentment; II. By writ of quare impedit—to compel institution and recover damages: consequent to which are the writs of quare incumbravit, and quare non admisit; for subsequent damages. III. By writ of right of advowson; to compel institution, or establish the permanent right.............................. 245-252
  • CHAPTER XVII. Of Injuries proceeding from, or affecting, the Crown .................... 254 to 265
    • 1. Injuries to which the crown is a party, are, I. Where the crown is the aggressor. II. Where the crown is the sufferer ........ 254
    • 2. The crown is the aggressor, whenever it is in possession of any property to which the subject hath a right .................. 254-255
    • 3. This is remedied, I. By petition of right; where the right is grounded on facts disclosed in the petition itself. II. By monstrans de droit; where the claim is grounded on facts already appearing on record. The effect of both which is to remove the hands (or possession) of the king...... 255-257
    • 4. Where the crown is the sufferer, the king’s remedies are, I. By such commonlaw actions as are consistent with the royal dignity. II. By inquest of office, to recover possession: which, when found, gives the king his right by solemn matter of record; but may afterwards be traversed by the subject. III. By writ of scire facias, to repeal the king’s patent or grant. IV. By information of intrusion, to give damages for any trespass on the lands of the crown: or of debt, to recover moneys due upon contract, or forfeited by the breach of any penal statute; or sometimes (in the latter case) by information in rem: all filed in the Exchequer ex officio by the king’s attorney-general. V. By writ of quo warranto, or information in the nature of such writ; to seize into the king’s hands any franchise usurped by the subject, or to oust a usurper from any public office. VI. By writ of mandamus, unless cause; to admit or restore any person entitled to a franchise or office: to which, if a false cause be returned, the remedy is by traverse, or by action on the case for damages; and, in consequence, a peremptory mandamus, or writ of restitution .................. 257-265
  • CHAPTER XVIII. Of the Pursuit of Remedies by Action, and, first, of the Original Writ.. 270 to 272
    • 1. The pursuit of the several remedies furnished by the laws of England, is, I. By action in the courts of common law. II. By proceedings in the courts of equity ... 270
    • 2. Of an action in the court of Common Pleas, (originally the proper court for prosecuting civil suits,) the orderly parts are, I. The original writ. II. The process. III. The pleadings. IV. The issue or demurrer. V. The trial. VI. The judgment. VII. The proceedings in nature of appeal. VIII. The execution 272
    • 3. The original writ is the beginning or foundation of a suit, and is either optional, (called a præcipe,) commanding the defendant to do something in certain, or otherwise show cause to the contrary; or peremptory, (called a si fecerit te securum,) commanding, upon security given by the plaintiff, the defendant to appear in court, to show wherefore he hath injured the plaintiff both issuing out of Chancery under the king’s great seal, and returnable in bank during term-time............... 272
  • CHAPTER XIX. Of Process.............................. 279 to 292
    • 1. Process is the means of compelling the defendant to appear in court................ 279
    • 2. This includes, I. Summons. II. The writ or attachment, or pone; which is sometimes the first or original process. III. The writ of distringas, or distress infinite. IV. The writs of capias ad respondendum, and testatum capias: or, instead of these, in the King’s Bench, the bill of Middlesex, and writ of latitat;—and, in the Exchequer, the writ of quo minus. V. The alias and pluries writs. VI. The exigent, or writ of exigi facias, proclamations, and outlawry. VII. Appearance, and common bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then to the action.............................. 279-292
  • CHAPTER XX. Of Pleadings.............................. 293 to 313
    • 1. Pleadings are the mutual altercations of the plaintiff and defendant, in writing; under which are comprised. I. The declaration or count, (wherein, incidentally, of the visne, nonsuit, retraxit, and discontinuance.) II. The defence, claim of cognizance, imparlance, view, oyer, aid-prayer, voucher, or age. III. The plea; which is either a dilatory plea (1st, to the jurisdiction; 2dly, in disability of the plaintiff; 3dly, in abatement, or it is a plea to the action; sometimes confessing the action, either in whole, or in part, (wherein of a tender, paying money into court, and set-off,) but usually denying the complaint, by pleading either, 1st, the general issue; or, 2dly, a special bar, (wherein of justifications, the statutes of limitation, &c.) IV. Replication, rejoinder, surrejoinder, rebutter, surrebutter &c. Therein of estoppels, colour, duplicity, departure, new assignment, protestation, averment, and other incidents of pleading.............................. 293-313
  • CHAPTER XXI. Of Issue and Demurrer ............... 314 to 317
    • 1. Issue is where the parties, in a course of pleading, come to a point affirmed on one side and denied on the other: which, if it be a matter of law, is called a demurrer; if it be a matter of fact, still retains the name of an issue of fact.................... 314
    • 2. Continuance is the detaining of the parties in court from time to time, by giving them a day certain to appear upon. And, if any new matter arises since the last continuance or adjournment, the defendant may take advantage of it, even after demurrer or issue, by alleging it in a plea puis darrein continuance.................... 315
    • 3. The determination of an issue in law, or demurrer, is by the opinion of the judges of the court; which is afterwards entered on record.............................. 317
  • CHAPTER XXII. Of the Several Species of Trial... 330 to 341
    • 1. Trial is the examination of the matter of fact put in issue.............................. 330
    • 2. The species of trials are, I. By the record. II. By inspection. III. By certificate. IV. By witnesses. V. By wager of battel. VI. By wager of law. VII. By jury.............................. 380
    • 3. Trial by the record is had, when the existence of such record is the point in issue 330
    • 4. Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of the senses.............................. 331
    • 5. Trial by certificate is had in those cases where such certificate must have been conclusive to a jury .................... 333
    • 6. Trial by witnesses (the regular method in the civil law) is only used on a writ of dower, when the death of the husband is in issue .............................. 336
    • 7. Trial by wager of battel, in civil cases, is only had on a writ of right; but, in lieu thereof, the tenant may have, at his option, the trial by the grand assise ...... 337
    • 8. Trial by wager of law is only had, where the matter in issue may be supposed to have been privily transacted between the parties themselves, without the intervention of other witnesses.......... 341
  • CHAPTER XXIII. Of the Trial by Jury ............. 351 to 385
    • 1. Trial by jury is, I. Extraordinary; as, by the grand assise, in writs of right; and by the grand jury, in writs of attaint. II. Ordinary .................... 351
    • 2. The method and process of the ordinary trial by jury is, I. The writ of venire facias to the sheriff, coroners, or elisors; with the subsequent compulsive process of habeas corpora, or distringas. II. The carrying down of the record to the court of nisi prius. III. The sheriff’s return; or panel of, 1st, special, 2dly, common, jurors. IV. The challenges; 1st, to the array; 2dly, to the polls of the jurors; either, propter honoris respectum, propter defectum, propter affectum, (which is sometimes a principal challenge, sometimes to the favour,) or, propter delictum. V. The tales de circumstantibus. VI. The oath of the jury. VII. The evidence; which is either by proofs, 1st, written; 2dly, parol,—or, by the private knowledge of the jurors. VIII. The verdict: which may be, 1st, privy; 2dly, public; 3dly, special.............................. 351-385
  • CHAPTER XXIV. Of Judgment, and its Incidents ...... 386 to 399
    • 1. Whatever is transacted at the trial, in the court of nisi prius, is added to the record under the name of a postea; consequent upon which is the judgment ......... 386
    • 2. Judgment may be arrested or stayed for causes, I. Extrinsic, or dehors the record: as in the case of new trials. II. Intrinsic, or within it: as where the declaration varies from the writ, or the verdict from the pleadings and issue; or where the case laid in the declaration is not sufficient to support the action in point of law .............................. 386-394
    • 3. Where the issue is immaterial or insufficient, the court may award a repleader 395
    • 4. Judgment is the sentence of the law, pronounced by the court, upon the matter contained in the record .......... 395
    • 5. Judgments are, I. Interlocutory; which are incomplete till perfected by a writ of inquiry. II. Final.................... 396
    • 6. Costs, or expenses of suit, are now the necessary consequence of obtaining judgment.............................. 399
  • CHAPTER XXV. Of Proceedings in the Nature of Appeals .............................. 402 to 411
    • 1. Proceedings in the nature of appeals from judgment are, I. A writ of attaint; to impeach the verdict of a jury: which of late has been superseded by new trials. II. A writ of deceit. III. A writ of audita querela; to discharge a judgment by matter that has since happened. IV. A writ of error, from one court of record to another; to correct judgments, erroneous in point of law, and not helped by the statutes of amendment and jeofails.................... 402-406
    • 2. Writs of error lie, I. To the court of King’s Bench, from all inferior courts of record; from the court of Common Pleas at Westminster; and from the court of King’s Bench in Ireland. II. To the courts of Exchequer Chamber, from the law side of the court of Exchequer; and from proceedings in the court of King’s Bench by bill. III. To the house of peers, from proceedings in the court of King’s Bench by original, and on writs of error; and from the several courts of Exchequer Chamber ............... 406-411
  • CHAPTER XXVI. Of Execution.............................. 412 to 425
    • 1. Execution is the putting in force of the sentence of judgment of the law: which is effected, I. Where possession of any hereditament is recovered; by writ of habere facias seisinam, possessionem, &c. II. Where any thing is awarded to be done or rendered; by a special writ for that purpose: as, by writ of abatement in case of nuisance; retorno habendo, and capias in withernam, in replevin; distringas and scire facias in detinue. III. Where money only is recovered; by writ of, 1st, capias ad satisfaciendum, against the body of the defendant; or, in default thereof, scire facias, against his bail. 2dly, fieri facias, against his goods and chattels. 3dly, levari facias, against his goods and the profits of his lands. 4thly, elegit, against his goods and the possession of his lands. 5thly, extendi facias, and other process, on statutes, recognizances, &c., against his body, lands, and goods.............................. 412-425
  • CHAPTER XXVII. Of Proceedings in the Courts of Equity 426 to 455
    • 1. Matters of equity, which belong to the peculiar jurisdiction of the court of Chancery, are, I. The guardianship of infants. II. The custody of idiots and lunatics. III. The superintendence of charities. IV. Commissions of bankrupt.............................. 426-428
    • 2. The court of Exchequer, and the duchy court of Lancaster, have also some peculiar causes, in which the interest of the king is more immediately concerned .............................. 428-429
    • 3. Equity is the true sense and sound interpretation of the rules of law, and, as such, is equally attended to by the judges of the courts both of common law and equity .................... 430-43
    • 4. The essential differences, whereby the English courts of equity are distinguished from the courts of law, are, I. The mode of proof, by a discovery on the oath of the party; which gives a jurisdiction in matters of account, and fraud. II. The mode of trial; by depositions taken in any part of the world. III. The mode of relief; by giving a more specific and extensive remedy than can be had in the courts of law: as, by carrying agreements into execution, staying waste or other injuries by injunction, directing the sale of encumbered lands, &c. IV. The true construction of securities for money, by considering them merely as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal estates.............................. 436-440
    • 5. The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpœna; and perhaps injunction. III. Process of contempt; viz., (ordinarily) attachment, attachment with proclamations, commission of rebellion, serjeant-at-arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amendments; cross, or supplemental, bills, bills of revivor, interpleader, &c. IX. Replication. X. Issue. XI. Depositions taken upon interrogatories; and subsequent publication thereof. XII. Hearing. XIII. Interlocutory decree; feigned issue, and trial; reference to the master, and report; &c. XIV. Final decree. XV. Rehearing, or bill of review. XVI. Appeal to parliament.............................. 442-458

CONTENTS OF THE ANALYSIS OF BOOK IV.

  • PUBLIC WRONGS. To which are considered
    • I. The general nature of crimes, and punishment .................... Chapter I.
    • II. The persons capable of committing crimes.................... II.
    • III. Their several degrees of guilt; as
      • 1. Principals,
      • 2. Accessories ........................................ III.
    • IV. The several crimes (with their punishments) more peculiarly offending
      • 1. God and religion........................................ IV.
      • 2. The law of nations........................................ V.
      • 3. The king and government; viz.
        • 1. High treason ........................................ VI.
        • 2. Felonies injurious to the prerogative .................... VII.
        • 3. Præmunire........................................ VIII.
        • 4. Misprisions and contempts.............................. IX.
      • 4. The commonwealth; viz. offences against
        • 1. Public justice ........................................ X.
        • 2. Public peace ........................................ XI.
        • 3. Public trade ........................................ XII.
        • 4. Public health,
        • 5. Public economy ........................................ XIII.
      • 5. Individuals; being crimes against
        • 1. Their persons; by
          • 1. Homicide ........................................ XIV.
          • 2. Other corporal injuries.............................. XV.
        • 2. Their habitations ........................................ XVI.
        • 3. Their property ........................................ XVII.
    • V. The means of prevention; by security for
      • 1. The peace,
      • 2. The good behaviour ........................................ XVIII.
    • VI. The method of punishment; wherein of
      • 1. The several courts of criminal jurisdiction .................... XIX.
      • 2. The proceedings there,
        • 1. Summary ........................................ XX.
        • 2. Regular; by
          • 1. Arrest ........................................ XXI.
          • 2. Commitment and bail.............................. XXII.
          • 3. Prosecution; by
            • 1. Presentment,
            • 2. Indictment,
            • 3. Information,
            • 4. Appeal........................................ XXIII.
          • 4. Process ........................................ XXIV.
          • 5. Arraignment, and its incidents .............................. XXV.
          • 6. Plea, and issue ........................................ XXVI.
          • 7. Trial, and conviction ........................................ XXVII.
          • 8. Clergy ........................................ XXVIII.
          • 9. Judgment, and attainder; which induce
            • 1. Forfeiture,
            • 2. Corruption of blood........................................ XXIX.
          • 10. Avoider of judgment, by
            • 1. Falsifying, or reversing, the attainder .................... XXX.
            • 2. Reprieve, or pardon ........................................ XXXI.
          • 11. Execution ........................................ XXXII.

ANALYSIS. BOOK IV.*—OF PUBLIC WRONGS.

  • CHAPTER I. Of the Nature of Crimes, and their Punishment.................... Page 1 to 12
    • 1. In treating of public wrongs may be considered, I. The general nature of crimes and punishments. II. The persons capable of committing crimes. III. Their several degrees of guilt. IV. The several species of crimes, and their respective punishments. V. The means of prevention. VI. The method of punishment.............................. 1
    • 2. A crime, or misdemeanour, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it.............................. 5
    • 3. Crimes are distinguished from civil injuries, in that they are a breach and violation of the public rights, due to the whole community, considered as a community .............................. 5
    • 4. Punishments may be considered with regard to, I. The power, II. The end, III. The measure,—of their infliction..... 7
    • 5. The power, or right, of inflicting human punishments, for natural crimes, or such as are mala in se, was by the law of nature vested in every individual; but, by the fundamental contract of society, is now transferred to the sovereign power: in which also is vested, by the same contract, the right of punishing positive offences, or such as are mala prohibita .............................. 7
    • 6. The end of human punishments is to prevent future offences; I. By amending the offender himself. II. By deterring others through his example. III. By depriving him of the power to do future mischief .............................. 11
    • 7. The measure of human punishments must be determined by the wisdom of the sovereign power, and not by any uniform universal rule: though that wisdom may be regulated, and assisted, by certain general, equitable principles...... 12
  • CHAPTER II. Of the Persons capable of committing Crimes.............................. 20 to 33
    • 1. All persons are capable of committing crimes, unless there be in them a defect of will; for, to constitute a legal crime, there must be both a vicious will and a vicious act .............................. 20
    • 2. The will does not concur with the act, I. Where there is a defect of understanding. II. Where no will is exerted. III. Where the act is constrained by force and violence.............................. 21
    • 3. A vicious will may therefore be wanting, in the cases of I. Infancy. II. Idiocy, or lunacy. III. Drunkenness; which doth not, however, excuse. IV. Misfortune. V. Ignorance, or mistake of fact. VI. Compulsion, or necessity; which is, 1st, that of civil subjection; 2dly, that of duress per minas; 3dly, that of choosing the least pernicious of two evils where one is unavoidable; 4thly, that of want or hunger; which is no legitimate excuse.............................. 22-32
    • 4. The king, from his excellence and dignity, is also incapable of doing wrong.... 33
  • CHAPTER III. Of Principals and Accessories.......... 34 to 37
    • 1. The different degrees of guilt in criminals are, I. As principals. II. As accessories.............................. 34
    • 2. A principal in a crime is, I. He who commits the fact. II. He who is present at, aiding, and abetting, the commission .............................. 34
    • 3. An accessory is he who doth not commit the fact, nor is present at the commission, but is in some sort concerned therein, either before or after .................... 35
    • 4. Accessories can only be in petit treason, and felony: in high treason, and misdemeanours, all are principals .................... 35
    • 5. An accessory before the fact is one who, being absent when the crime is committed, hath procured, counselled, or commanded another to commit it .................... 36
    • 6. An accessory after the fact, is where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Such accessory is usually entitled to the benefit of clergy; where the principal, and accessory before the fact, are excluded from it ............... 37
  • CHAPTER IV. Of Offences against God and Religion .. 42 to 65
    • 1. Crimes and misdemeanours, cognizable by the laws of England, are such as more immediately offend, I. God, and his holy religion. II. The law of nations. III. The king and his government. IV. The public, or commonwealth. V. Individuals.............................. 42
    • 2. Crimes more immediately offending God and religion are, I. Apostasy. For which the penalty is incapacity, and imprisonment. II. Heresy. Penalty for one species thereof: the same. III. Offences against the established church. Either by reviling its ordinances. Penalties: fine; deprivation; imprisonment; forfeiture.—Or, by non-conformity to its worship: 1st, through total irreligion. Penalty: fine. 2dly, through Protestant dissenting. Penalty: suspended (conditionally) by the toleration act. 3dly, through popery, either in professors of the popish religion, popish recusants convict, or popish priests. Penalties: incapacity; double taxes; imprisonment; fines; forfeitures; abjuration of the realm; judgment of felony, without clergy; and judgment of high treason. IV. Blasphemy. Penalty: fine, imprisonment, and corporal punishment. V. Profane swearing and cursing. Penalty: fine, or house of correction. VI. Witchcraft; or, at least, the pretence thereto. Penalty: imprisonment, and pillory. VII. Religious impostures. Penalty: fine, imprisonment, and corporal punishment. VIII. Simony. Penalties: forfeiture of double value: incapacity. IX. Sabbath-breaking. Penalty: fine. X. Drunkenness. Penalty: fine, or stocks. XI. Lewdness. Penalties: fine; imprisonment; house of correction....... 43-65
  • CHAPTER V. Of Offences against the Law of Nations 66 to 73
    • 1. The law of nations is a system of rules, deducible by natural reason, and established by universal consent, to regulate the intercourse between independent states.............................. 66
    • 2. In England, the law of nations is adopted, in its full extent, as part of the law of the land.............................. 67
    • 3. Offences against this law are principally incident to whole states or nations; but, when committed by private subjects, are then the objects of the municipal law ...... 68
    • 4. Crimes against the law of nations, animadverted on by the laws of England, are, I. Violation of safe-conducts. II. Infringement of the rights of ambassadors. Penalty, in both: arbitrary. III. Piracy. Penalty: judgment of felony, without clergy .............................. 68-73
  • CHAPTER VI. Of High Treason .................... 74 to 92
    • 1. Crimes and misdemeanours more peculiarly offending the king and his government are, I. High treason. II. Felonies injurious to the prerogative. III. Præmunire. IV. Other misprisions and contempts.............................. 74
    • 2. High treason may, according to the statute of Edward III., be committed, I. By compassing or imagining the death of the king or queen consort, or their eldest son and heir; demonstrated by some overt act. II. By violating the king’s companion, his eldest daughter, or the wife of his eldest son. III. By some overt act of levying war against the king in his realm. IV. By adherence to the king’s enemies. V. By counterfeiting the king’s great or privy seal. VI. By counterfeiting the king’s money, or importing counterfeit money. VII. By killing the chancellor, treasurer, or king’s justices, in the execution of their offices .................... 76-8[Editor: illegible character]
    • 3. High treasons, created by subsequent statutes, are such as relate, I. To papists: as, the repeated defence of the pope’s jurisdiction; the coming from beyond sea of a natural-born popish priest; the renouncing of allegiance and reconciliation to the pope, or other foreign power. II. To the coinage or other signatures of the king: as, counterfeiting (or, importing and uttering counterfeit) foreign coin, here current; forging the sign-manual, privy signet, or privy seal; falsifying, &c. the current coin. III. To the Protestant succession; as, corresponding with, or remitting money to, the late pretender’s sons; endeavouring to impede the succession; writing or printing in defence of any pretender’s title, or in derogation of the act of settlement, or of the power of parliament to limit the descent of the crown............. 87-92
    • 4. The punishment of high treason, in males, is (generally) to be, I. Drawn. II. Hanged. III. Embowelled alive. IV. Beheaded. V. Quartered. VI. The head and quarters to be at the king’s disposal. But, in treasons relating to the coin, only to be drawn, and hanged till dead. Females, in both cases, are to be drawn and burned alive.................... 92
  • CHAPTER VII. Of Felonies Injurious to the King’s Prerogative. .............................. 94 to 102
    • 1. Felony is that offence which occasions the total forfeiture of lands or goods at commonlaw: now usually also punishable with death, by hanging; unless through the benefit of clergy.................... 94
    • 2. Felonies injurious to the king’s prerogative (of which some are within, others without, clergy) are, I. Such as relate to the coin: as, the wilful uttering of counterfeit money, &c.: (to which head some inferior misdemeanours affecting the coinage may be also referred.) II. Conspiring or attempting to kill a privy counsellor. III. Serving foreign states, or enlisting soldiers for foreign service. IV. Embezzling the king’s armour or stores. V. Desertion from the king’s armies, by land or sea.............................. 98-102
  • CHAPTER VIII. Of Præmunire. .............................. 103 to 11[Editor: illegible character]]
    • 1. Præmunire, in its original sense, is the offence of adhering to the temporal power of the pope, in derogation of the regal authority. Penalty: outlawry, forfeiture, and imprisonment: which hath since been extended to some offences of a different nature .............................. 10[Editor: illegible character]
    • 2. Among these are, I. Importing popish trinkets. II. Contributing to the maintenance of popish seminaries abroad, or popish priests in England. III. Molesting the possessors of abbey-lands. IV. Acting as broker in a usurious contract, for more than ten per cent. V. Obtaining any stay of proceedings in suits for monopolies. VI. Obtaining an exclusive patent for gunpowder or arms. VII. Exertion of purveyance or pre-emption. VIII. Asserting a legislative authority in both or either house of parliament. IX. Sending any subject a prisoner beyond sea. X. Refusing the oaths of allegiance and supremacy. XI. Preaching, teaching, or advised speaking in defence of the right of any pretender to the crown, or in derogation of the power of parliament to limit the succession. XII. Treating of other matters, by the assembly of peers of Scotland, convened for electing their representatives in parliament. XIII. Unwarrantable undertakings by unlawful subscriptions to public funds .... 115-117
  • CHAPTER IX. Of Misprisions and Contempts, affecting the King and Government .... 119 to 126
    • 1. Misprisions and contempts are all such high offences as are under the degree of capital .............................. 119
    • 2. These are, I. Negative, in concealing what ought to be revealed. II. Positive, in committing what ought not to be done .............................. 119
    • 3. Negative misprisions are, I. Misprision of treason. Penalty: forfeiture and imprisonment. II. Misprision of felony. Penalty: fine and imprisonment. III. Concealment of treasure trove. Penalty: fine and imprisonment .................... 120-121
    • 4. Positive misprisions, or high misdemeanours and contempts, are, I. Maladministration of public trusts, which includes the crime of peculation. Usual penalties: banishment; fines; imprisonment; disability. II. Contempts against the king’s prerogative. Penalty: fine and imprisonment. III. Contempts against his person and government. Penalty: fine, imprisonment, and infamous corporal punishment. IV. Contempts against his title. Penalties: fine and imprisonment; or, fine and disability. V. Contempts against his palaces, or courts of justice. Penalties: fine; imprisonment; corporal punishment; loss of right hand; forfeiture.............................. 121-126
  • CHAPTER X. Of Offences against Public Justice. ... 127 to 141
    • 1. Crimes especially affecting the commonwealth are offences, I. Against the public justice. II. Against the public peace. III. Against the public trade. IV. Against the public health. V. Against the public police, or economy............... 127
    • 2. Offences against the public justice are, I. Embezzling, or vacating, records, and personating others in courts of justice. Penalty: judgment of felony usually without clergy. II. Compelling prisoners to become approvers. Penalty: judgment of felony. III. Obstructing the execution of process. IV. Escapes. V. Breach of prison. VI. Rescue.—Which four may (according to the circumstances) be either felonies, or misdemeanours punishable by fine and imprisonment. VII. Returning from transportation. This is felony, without clergy. VIII. Taking rewards to help one to his stolen goods. Penalty: the same as for the theft. IX. Receiving stolen goods. Penalties: transportation; fine; and imprisonment. X. Theftbote. XI. Common barretry, and suing in a feigned name. XII. Maintenance. XIII. Champerty. Penalty, in these four: fine and imprisonment. XIV. Compounding prosecutions on penal statutes. Penalty: fine, pillory, and disability. XV. Conspiracy; and threats of accusation in order to extort money, &c. Penalties: the villenous judgment; fine; imprisonment; pillory; whipping; transportation. XVI. Perjury, and subornation thereof. Penalties: infamy; imprisonment; fine, or pillory, and sometimes transportation, or house of correction. XVII. Bribery. Penalty: fine, and imprisonment. XVIII. Embracery. Penalty: infamy, fine, and imprisonment. XIX. False verdict. Penalty: the judgment in attaint. XX. Negligence of public officers, &c. Penalty: fine and forfeiture of the office. XXI. Oppression by the magistrates. XXII. Extortion of officers. Penalty, in both: imprisonment, fine, and sometimes forfeiture of the office.............................. 128-141
  • CHAPTER XI. Of Offences against the Public Peace. ... 142 to 153
    • 1. Offences against the public peace are, I. Riotous assemblies to the number of twelve. II. Appearing armed, or hunting, in disguise. III. Threatening, or demanding any valuable thing, by letter. All these are felonies, without clergy. IV. Destroying of turnpikes, &c. Penalties: whipping; imprisonment; judgment of felony, with and without clergy. V. Affrays. VI. Riots, routs, and unlawful assemblies. VII. Tumultuous petitioning. VIII. Forcible entry and detainer. Penalty, in all four: fine, and imprisonment. IX. Going unusually armed. Penalty: forfeiture of arms, and imprisonment. X. Spreading false news. Penalty: fine, and imprisonment. XI. Pretended prophecies. Penalties: fine; imprisonment; and forfeiture. XII. Challenges to fight. Penalty: fine, imprisonment, and sometimes forfeiture. XIII. Libels. Penalty: fine, imprisonment, and corporal punishment.............................. 142-153
  • CHAPTER XII. Of Offences against Public Trade... 154 to 160
    • 1. Offences against the public trade are, I. Owling. Penalties: fines; forfeitures; imprisonment; loss of left hand; transportation; judgment of felony. II. Smuggling. Penalties: fines; loss of goods; judgment of felony, without clergy. III. Fraudulent bankruptcy. Penalty: judgment of felony, without clergy. IV. Usury. Penalty: fine and imprisonment. V. Cheating. Penalties: fine; imprisonment; pillory; tumbrel; whipping, or other corporal punishment; transportation. VI. Forestalling. VII. Regrating VIII. Engrossing. Penalties, for all three: loss of goods; fine; imprisonment; pillory. IX. Monopolies, and combinations to raise the price of commodities. Penalties: fines; imprisonment; pillory; loss of ear; infamy; and, sometimes, the pains of præmunire. X. Exercising a trade, not having served as apprentice. Penalty: fine. XI. Transporting, or residing abroad, of artificers. Penalties: fine; imprisonment; forfeiture; incapacity; becoming aliens...... 154-160
  • CHAPTER XIII. Of Offences against the Public Health, and against the Public Police or Economy .............................. 161 to 175
    • 1. Offences against the public health are, I. Irregularity in time of the plague or of quarantine. Penalties: whipping; judgment of felony, with and without clergy. II. Selling unwholesome provisions. Penalties: amercement; pillory; fine; imprisonment; abjuration of the town .............................. 161-162
    • 2. Offences against the public police and economy, or domestic order of the kingdom, are. I. Those relating to clandestine and irregular marriages. Penalties: judgment of felony, with and without clergy. II. Bigamy or (more properly) polygamy. Penalty: judgment of felony. III. Wandering, by soldiers or mariners. IV. Remaining in England by Egyptians, or being in their fellowship one month. Both these are felonies, without clergy. V. Common nuisances: 1st, by annoyances or purprestures in highways, bridges, and rivers; 2dly, by offensive trades and manufactures; 3dly, by disorderly houses; 4thly, by lotteries; 5thly, by cottages; 6thly, by fireworks; 7thly, by eavesdropping. Penalty, in all: fine. 8thly, by common scolding. Penalty: the cucking-stool. VI. Idleness, disorder, vagrancy, and incorrigible roguery. Penalties: imprisonment; whipping; judgment of felony. VII. Luxury in diet. Penalty: discretionary. VIII. Gaming. Penalties: to gentlemen, fines; to others, fine and imprisonment; to cheating gamesters, fine, infamy, and the corporal pains of perjury. IX. Destroying the game. Penalties: fines; and corporal punishment .............................. 162-175
  • CHAPTER XIV. Of Homicide. .............................. 176 to 203
    • 1. Crimes especially affecting individuals are, I. Against their persons. II. Against their habitations. III. Against their property.............................. 176
    • 2. Crimes against the persons of individuals are, I. By homicide, or destroying life. II. By other corporal injuries................ 177
    • 3. Homicide is, I. Justifiable. II. Excusable. III. Felonious.................... 178
    • 4. Homicide is justifiable, I. By necessity, and command of law. II. By permission of law: 1st, for the furtherance of public justice; 2dly, for prevention of some forcible felony.............................. 179
    • 5. Homicide is excusable, I. Per infortunium, or by misadventure. II. Se defendendo, or self-defence, by chance-medley. Penalty, in both: forfeiture of goods; which however is pardoned of course ............... 182
    • 6. Felonious homicide is the killing of a human creature without justification or excuse. This is, I. Killing one’s self. II. Killing another .................... 188
    • 7. Killing one’s self, or self-murder, is where one deliberately, or by any unlawful malicious act, puts an end to his own life. This is felony; punished by ignominious burial, and forfeiture of goods and chattels.............................. 189
    • 8. Killing another is, I. Manslaughter. II. Murder .............................. 190
    • 9. Manslaughter is the unlawful killing of another; without malice, express or implied. This is either, I. Voluntary, upon a sudden heat. II. Involuntary, in the commission of some unlawful act. Both are felony, but within clergy; except in the case of stabbing.................... 191
    • 10. Murder is when a person of sound memory and discretion unlawfully killeth any reasonable creature, in being and under the king’s peace; with malice aforethought, either express or implied. This is felony, without clergy; punished with speedy death, and hanging in chains or dissection .............................. 194
    • 11. Petit treason (being an aggravated degree of murder) is where the servant kills his master, the wife her husband, or the ecclesiastic his superior. Penalty: in men, to be drawn and hanged; in women, to be drawn and burned ............ 208
  • CHAPTER XV. Of Offences against the Persons of Individuals .............................. 205 to 219
    • 1. Crimes affecting the persons of individuals, by other corporal injuries not amounting to homicide, are, I. Mayhem; and also shooting at another. Penalties: fine; imprisonment; judgment of felony, without clergy. II. Forcible abduction, and marriage or defilement, of an heiress; which is felony: also, stealing, and deflowering or marrying, any woman-child under the age of sixteen years; for which the penalty is imprisonment, fine, and temporary forfeiture of her lands. III. Rape; and also carnal knowledge of a woman-child under the age of ten years. IV. Buggery, with man or beast. Both these are felonies, without clergy. V. Assault. VI. Battery; especially of clergymen. VII. Wounding. Penalties, in all three: fine; imprisonment; and other corporal punishment. VIII. False imprisonment. Penalties: fine; imprisonment: and (in some atrocious cases) the pains of præmunire, and incapacity of office or pardon. IX. Kidnapping, or forcibly stealing away the king’s subjects. Penalty: fine; imprisonment; and pillory .............................. 205-219
  • CHAPTER XVI. Of Offences against the Habitations of Individuals............................... 220 to 223
    • 1. Crimes affecting the habitations of individuals are, I. Arson. II. Burglary ...... 220
    • 2. Arson is the malicious and wilful burning of the house, or out-house, of another man. This is felony; in some cases within, in others without, clergy ... 220
    • 3. Burglary is the breaking and entering, by night, into a mansion-house, with intent to commit a felony. This is felony, without clergy .................... 223
  • CHAPTER XVII. Of Offences against Private Property .. 229 to 247
    • 1. Crimes affecting the private property of individuals are, I. Larceny. II. Malicious mischief. III. Forgery ............... 229
    • 2. Larceny is, I. Simple. II. Mixed, or compound .............................. 229
    • 3. Simple larceny is the felonious taking, and carrying away, of the personal goods of another. And it is, I. Grand larceny; being above the value of twelvepence. Which is felony; in some cases within, in others without, clergy. II. Petit larceny; to the value of twelvepence or under. Which is also felony, but not capital; being punished with whipping, or transportation .................. 229
    • 4. Mixed, or compound, larceny, is that wherein the taking is accompanied with the aggravation of being, I. From the house. II. From the person ................ 239
    • 5. Larcenies from the house, by day or night, are felonies without clergy, when they are, I. Larcenies, above twelvepence, from a church;—or by breaking a tent or booth in a market or fair, by day or night, the owner or his family being therein;—or by breaking a dwelling-house by day, any person being therein;—or from a dwelling-house by day without breaking, any person therein being put in fear;—or from a dwelling-house by night, without breaking, the owner or his family being therein, and put in fear. II. Larcenies of five shillings, by breaking the dwelling-house, shop, or warehouse, by day, though no person be therein; or by privately stealing in any shop, warehouse, coach-house, or stable, by day or night, without breaking, and though no person be therein III. Larcenies, of forty shillings, from a dwelling-house or its out-houses, without breaking, and though no person be therein .............................. 239
    • 6. Larceny from the person is, I. By privately stealing from the person of another, above the value of twelvepence. II. By robbery; or the felonious and forcible taking, from the person of another, goods or money of any value, by putting him in fear. These are both felonies without clergy. An attempt to rob is also felony .................... 241
    • 7. Malicious mischief, by destroying dikes, goods, cattle, ships, garments, fishponds, trees, woods, churches, chapels, meeting-houses, houses, out-houses, corn, hay, straw, sea or river banks, hop-binds, coal-mines, (or engines thereunto belonging,) or any fences for enclosures by act of parliament, is felony, and, in most cases, without benefit of clergy .............................. 243
    • 8. Forgery is the fraudulent making or alteration of a writing, in prejudice of another’s right. Penalties: fine; imprisonment; pillory; loss of nose and ears; forfeiture; judgment of felony, without clergy.............................. 247
  • CHAPTER XVIII. Of the Means of preventing Offences ... 251 to 256
    • 1. Crimes and misdemeanours may be prevented by compelling suspected persons to give security: which is effected by binding them in a conditional recognizance to the king, taken in court, or by a magistrate out of court .................... 251
    • 2. These recognizances may be conditioned, I. To keep the peace. II. To be of the good behaviour.............................. 252
    • 3. They may be taken by any justice or conservator of the peace, at his own discretion; or at the request of such as are entitled to demand the same .................... 253
    • 4. All persons, who have given sufficient cause to apprehend an intended breach of the peace, may be bound over to keep the peace; and all those that be not of good fame may be bound to the good behaviour; and may, upon refusal in either case, be committed to gaol........... 256
  • CHAPTER XIX. Of Courts of a Criminal Jurisdiction ... 258 to 277
    • 1. In the method of punishment may be considered, I. The several courts of criminal jurisdiction. II. The several proceedings therein .............................. 258
    • 2. The criminal courts are, I. Those of a public and general jurisdiction throughout the realm. II. Those of a private and special jurisdiction .................... 258
    • 3. Public criminal courts are. I. The high court of parliament; which proceeds by impeachment. II. The court of the lord high steward; and the court of the king in full parliament: for the trial of capitally-indicted peers. III. The court of King’s Bench. IV. The court of chivalry. V. The court of admiralty, under the king’s commission. VI. The courts of oyer and terminer. VII. General gaol-delivery. VIII. The court of quarter-sessions of the peace. IX. The sheriff’s tourn. X. The court-leet. XI. The court of the coroner. XII. The court of the clerk of the market........ 258-275
    • 4. Private criminal courts are, I. The court of the lord steward, &c. by statute of Henry VII. II. The court of the lord steward, &c. by statute of Henry VIII. III. The university courts ............... 275-277
  • CHAPTER XX. Of Summary Convictions ............... 280 to 288
    • 1. Proceedings in criminal courts are, I. Summary. II. Regular.................... 280
    • 2. Summary proceedings are such, whereby a man may be convicted of divers offences, without any formal process or jury, at the discretion of the judge or judges appointed by act of parliament, or common law .................... 280
    • 3. Such are, I. Trials of offences and frauds against the laws of excise and other branches of the king’s revenue. II. Convictions before justices of the peace upon a variety of minute offences, chiefly against the public police. III. Attachments for contempts to the superior courts of justice.................... 281-288
  • CHAPTER XXI. Of Arrests .............................. 289 to 295
    • 1. Regular proceedings in the courts of common law, are, I. Arrest. II. Commitment and bail. III. Prosecution. IV. Process. V. Arraignment, and its incidents. VI. Plea and issue. VII. Trial and conviction. VIII. Clergy. IX. Judgment, and its consequences. X. Reversal of judgment. XI. Reprieve, or pardon. XII. Execution............... 289
    • 2. An arrest is the apprehending, or restraining, of one’s person, in order to be forthcoming to answer a crime whereof one is accused or suspected............... 289
    • 3. This may be done, I. By warrant. II. By an officer, without warrant. III. By a private person, without warrant IV. By hue and cry.................... 289-295
  • CHAPTER XXII. Of Commitment and Bail............... 296 to 299
    • 1. Commitment is the confinement of one’s person in prison for safe custody by warrant from proper authority; unless, in bailable offences, he puts in sufficient bail, or security for his future appearance .............................. 296
    • 2. The magistrate is bound to take reasonable bail, if offered; unless the offender be not bailable .............................. 296
    • 3. Such are, I Persons accused of treason; or, II. Of murder; or, III. Of manslaughter, by indictment; or if the prisoner was clearly the slayer. IV. Prison-breakers, when committed for felony V. Outlaws. VI. Those who have abjured the realm. VII. Approvers, and appellees. VIII. Persons taken with the mainour. IX. Persons accused of arson. X. Excommunicated persons.......... 298
    • 4. The magistrate may, at his discretion, admit or not admit to bail persons not of good fame, charged with other felonies, whether as principals or as accessories .............................. 299
    • 5. If they be of good fame, he is bound to admit them to bail.................... 299
    • 6. The court of King’s Bench, or its judges in time of vacation, may bail in any case whatsoever.............................. 299
  • CHAPTER XXIII. Of the several Modes of Prosecution.... 301 to 312
    • 1. Prosecution, or the manner of accusing offenders, is either by a previous finding of a grand jury, as, I. By presentment. II. By indictment. Or, without such finding, III. By information. IV. By appeal .............................. 301
    • 2. A presentment is the notice taken by a grand jury of any offence, from their own knowledge or observation .................... 301
    • 3. An indictment is a written accusation of one or more persons of a crime or misdemeanour, preferred to, and presented on oath by, a grand jury; expressing, with sufficient certainty, the person, time, place, and offence .................... 302
    • 4. An information is, I At the suit of the king and a subject, upon penal statutes. II. At the suit of the king only. Either, 1. Filed by the attorney-general ex officio, for such misdemeanours as affect the king’s person or government; or, 2. Filed by the master of the crown-office (with leave of the court of King’s Bench) at the relation of some private subject, for other gross and notorious misdemeanours. All differing from indictments in this: that they are exhibited by the informer, or the king’s officer, and not on the oath of a grand jury .............................. 308-312
    • 5. An appeal is an accusation, or suit, brought by one private subject against another, for larceny, rape, mayhem, arson, or homicide: which the king cannot discharge or pardon, but the party alone can release.............................. 312
  • CHAPTER XXIV. Of Process upon an Indictment ...... 318 to 320
    • 1. Process to bring in an offender, when indicted in his absence, is, in misdemeanours, by venire facias, distress infinite, and capias; in capital crimes, by capias only; and, in both, by outlawry ... 318-320
    • 2. During this stage of proceedings, the indictment may be removed into the court of King’s Bench from any inferior jurisdiction, by writ of certiorari facias: and cognizance must be claimed in places of exclusive jurisdiction.................... 320
  • CHAPTER XXV. Of Arraignment, and its Incidents ........ 322-331
    • 1. Arraignment is the calling of the prisoner to the bar of the court, to answer the matter of the indictment............... 322
    • 2. Incident hereunto are, I. The standing mute of the prisoner; for which, in petit treason, and felonies of death, he shall undergo the peine forte et dure. II. His confession: which is either simple; or by way of approvement.................... 324-331
  • CHAPTER XXVI. Of Plea, and Issue .................... 332 to 341
    • 1. The pleas or defensive matter alleged by the prisoner, may be, I. A plea to the jurisdiction. II. A demurrer in point of law. III. A plea in abatement. IV. A special plea in bar: which is, 1st, autrefoits acquit 2dly, autrefoits convict; 3dly, autrefoits attaint; 4thly, a pardon. V. The general issue, not guilty .......... 332-341
    • 2. Hereupon issue is joined by the clerk of the arraigns on behalf of the king ......... 341
  • CHAPTER XXVII. Of Trial, and Conviction .............. 342 to 363
    • 1. Trials of offences, by the laws of England, were and are, I. By ordeal, of either fire or water. II. By the corsned. Both these have been long abolished. III. By battel, in appeals and approvements. IV. By the peers of Great Britain. V. By jury .............................. 342-349
    • 2. The method and process of trial by jury is, I The impanelling of the jury. II. Challenges: 1st, for cause; 2dly, peremptory. III. Tales de circumstantibus. IV. The oath of the jury. V. The evidence. VI. The verdict, either general or special.............................. 350-361
    • 3. Conviction is when the prisoner pleads, or is found, guilty: whereupon, in felonies, the prosecutor is entitled to, I. His expenses. II. Restitution of his goods .............................. 362-363
  • CHAPTER XXVIII. Of the Benefit of Clergy.............. 365 to 374
    • 1. Clergy, or the benefit thereof, was originally derived from the usurped jurisdiction of the popish ecclesiastics; but hath since been new-modelled by several statutes .............................. 365
    • 2. It is an exemption of the clergy from any other secular punishment for felony than imprisonment for a year, at the court’s discretion; and it is extended likewise, absolutely, to lay peers, for the first offence; and to all lay commoners, for the first offence also, upon condition of branding, imprisonment, or transportation.............................. 369-371
    • 3. All felonies are entitled to the benefit of clergy, except such as are now ousted by particular statutes.................... *373
    • 4. Felons, on receiving the benefit of clergy, (though they forfeit their goods to the crown,) are discharged of all clergyable felonies before committed and restored in all capacities and credits............ 374
  • CHAPTER XXIX. Of Judgment, and its Consequences ...... 375 to 389
    • 1. Judgment (unless any matter be offered in arrest thereof, follows upon conviction, being the pronouncing of that punishment which is expressly ordained by law .............................. 375
    • 2. Attainder of a criminal is the immediate consequence, I. Of having judgment of death pronounced upon him. II. Of outlawry for a capital offence ............... 380
    • 3. The consequences of attainder are, I. Forfeiture to the king. II. Corruption of blood .............................. 381
    • 4. Forfeiture to the king is, I. Of real estates, upon attainder—in high-treason, absolutely, till the death of the late pretender’s sons;—in felonies, for the king’s year, day, and waste;—in misprision of treason, assaults on a judge, or battery sitting the courts; during the life of the offender. II. Of personal estates, upon conviction; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of the king’s courts, and flight ......... 381-388
    • 5. Corruption of blood is an utter extinction of all inheritable quality therein: so that, after the king’s forfeiture is first satisfied, the criminal’s lands escheat to the lord of the fee; and he can never afterwards inherit, be inherited, or have any inheritance derived through him.............................. 388-389
  • CHAPTER XXX. Of Reversal of Judgment .............. 390 to 392
    • 1. Judgments, and their consequences, may be avoided, I. By falsifying, or reversing, the attainder. II. By reprieve, or pardon.............................. 390
    • 2. Attainders may be falsified, or reversed, I Without a writ of error; for matter dehors the record. II. By writ of error; for mistakes in the judgment, or record. III. By act of parliament; for favour.............................. 390-392
    • 3. When an outlawry is reversed, the party is restored to the same plight as if he had appeared upon the capias. When a judgment on conviction is reversed, the party stands as if never accused .............................. 392
  • CHAPTER XXXI. Of Reprieve and Pardon............... 394 to 398
    • 1. A reprieve is a temporary suspension of the judgment, I. Ex arbitrio judicis II. Ex necessitate legis; for pregnancy insanity, or the trial of identity of person, which must always be tried instanter.............................. 394-396
    • 2. A pardon is a permanent avoider of the judgment by the king’s majesty in offences against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender a new man.................... 396
    • 3. The king cannot pardon, I Imprisonment of the subject beyond the seas. II. Offences prosecuted by appeal. III. Common nuisances. IV. Offences against popular or penal statutes, after information brought by a subject. Nor is his pardon pleadable to an impeachment by the commons in parliament.............................. 398
  • CHAPTER XXXII. Of Execution.............................. 403
    • 1. Execution is the completion of human punishment, and must be strictly performed in the manner which the law directs .............................. 40[Editor: illegible character]
    • 2. The warrant for execution is sometimes under the hand and seal of the judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judge’s signing the calendar of prisoners, with their separate judgments in the margin.............................. 40[Editor: illegible character]

Last modified April 10, 2014