In the last all civil suits were tried. In the first all criminal ones, and to it lay the appeal from the court of common pleas. It was called king's bench, because the king then frequently sat upon it, though this cannot now be done, as it is improper that the king should judge of breaches of the king's peace. The court of exchequer judged in all affairs between the king and his subjects, the debts due by either of them to the other, and whatever regarded the revenue. The court of chancery was origin ally no court at all. The chancellor was no more than a keeper of briefs or writs according to which justice was done. What gave occasion to the keeping of these briefs shall now be considered.
Edward I abolished the power of the grand justiciary2. He employed mean persons to be judges, generally clergy- 1 It was the rule to finish of England, vol. vi. 1887, p. 252. every criminal trial on the day 2 Hume, History of England on which it began; Lecky, History (Caesarto Henry F//),vol. ii. p. 122.
men. As the decision depended on such persons, their jurisdictions would be exercised very precariously, and accordingly we find that both in criminal and civil cases they interposed with hesitation, in the former as mediators, and in the latter as arbitrators, and accordingly they would be unwilling to give justice in those cases where they had no precedent from the court of justiciary. On this account all the briefs by which the court of justiciary determined were kept. To keep these seems to have been originally the office of chancellor. If a person had a law-suit he went to the clerk of the court of chancery, who examined the briefs, and if he found one that compre hended your case, justice was done accordingly; but if one could not be found, you could not have justice. Thus we find that the chancellor was not a judge originally. In Scotland the office of the English chancellor is lodged in the court of session. In England a brief was sent from the chancellor to the sheriff by which he was obliged to appear before the king's judges. Judges then, from the irregularity and inaccuracy of their proceedings, gave great jealousy to the king, and on this account many severe sentences went out against them; £10,000 has at one time been levied from the judges on account of corruption1.
They were therefore tied down strictly to the chancery briefs, and always bound by their records in such a manner that they could not be in the least amended, not so much as a word wrong spelled rectified. This precision still remains in some cases where not taken away by the statutes of amendment; a mere orthographical blunder, though evidently so, has in many cases made the whole of no effect. The judges were therefore tied down to the precise words of the brief, or if there was a statute, to the words of it. This was the origin and jurisdiction of the court of chancery.
1 Hume, History of England (Caesar to Henry VII), vol. ii. p. 68; but the amount should be 100,000 marks.
During the improvement of the law of England there arose rivalships among the several courts. We shall therefore show how each of them began to extend its power and encroach [on] the privileges of another, and how the court of chancery increased its influence. The court of king's bench, which judged criminal causes and every breach of the king's peace, was the first that assumed immediately, and previously to an appeal, to judge in civil causes, and to encroach on the jurisdiction of the court of common pleas, by what is called a writ of error, that is, they supposed the person to be guilty of a trespass. For example, when a man owed,£10, and did not come to pay it at the time appointed, an order went out from the king's bench to examine and find him out, supposing that he intended to conceal himself, and they punished him for this trespass1. At present an action on contract can come immediately before the king's bench. In this manner it was that this court extended its power, and, being supreme over all, none could encroach upon it.
The court of exchequer brought in civil causes to be tried immediately by them in the following manner: suppose a man owed a sum of money to the king, which it is the business of the court to take care of, and the man cannot pay unless his debtors first pay him, the court took upon them to sue this other man by what is called the quo minus, that is, by what he is rendered less able to pay the king. As the debts of the king were many, and as the profits of the judges arose from sentence money, which was more or less according to the business of the court, they eagerly grasped at this extension of their power. All the courts endeavoured, by the speediness of their deter minations and accuracy of their proceedings, to encourage prosecutors to come before them2.
1 There is some confusion or Middlesex,' not a ' writ of error.' omission, as the process described 2 W. of N. bk. v. ch. i. pt. 2, is that followed under a ' bill of vol. ii. pp. 302, 303.
E In what manner the chancellor came to attain his equitable jurisdiction shall be taken notice of in the next place. After the improvement of arts and commerce, which gave occasion to many law-suits unheard of before, people suffered a great deal by the imperfections of law. Edward III1 found that there were a great many injuries to which no brief nor court statute extended; and therefore the parliament allowed that if a person applied to the clerk of chancery and found there was no brief that could give him any remedy, the clerk should look for some briefs of a similar nature and out of them compose a new one by which the complainer might have redress2.
In this manner the chancery prescribed rules to the other courts; but as they appointed the briefs and manner of proceeding, this was putting an end to the affair, for there was no occasion to go to any other court, and the chancery got these affairs into its own hands. There could be no appeal brought from the courts of king's bench or of common pleas to that of chancery, but they applied to it for what the common law could not redress. The chancellor in this manner obtained the power of judging in all cases of equity, and is applied to in the greater part of civil cases, the chief of which are, first, the specific performance of contracts. By the common law if a person was bound by contract to deliver a piece of ground, and afterwards refused to do it, he was only obliged to pay damages, but not to perform it specifically. The chancery, which was now considered as a court of conscience, enjoined the specific performance of it. Secondly, the chancery gave redress for all incests 3 and frauds in trust when the common law could not. As the leaving lands to the church deprived the king of the emoluments arising from 1 This should be ' Edward I.' 3 The reporter's or copyist's 2 Stat. Westm. II, 13 Ed. I. cap. mistake for some other word, 24; Dalrymple, Feudal Property, possibly ' deceits.'
them, an act was passed against it. The clergy ordered that they should be left to certain persons who would dispose of them for the benefit of the church, and if they did not perform it, then, as it was a fraud in trust, the chancellor allowed the bishop to see it done. In like manner, when persons in the state of affairs at that time were obliged to alienate their estates to persons that had no concern in them, the chancellor caused them to be restored. Wills, legacies, and things of this sort also fell under the equitable decision of the chancellor.
It will be proper when we are treating of courts to inquire into the origin of juries. In the beginning of the allodial government when the several courts had arrived at a very small degree of improvement, and before they had experience to examine thoroughly into matters, when any person was brought before them on an action depending on his oath, he was obliged to bring twelve compurgators to swear that the oath was just. There are remains of this at present in actions of debt, where, if the person can bring in a certain number of persons to swear that his oath is just, he gains the suit. It is to be observed that the im perfection of this way of trying was one of the great causes that gave origin to the judicial combat. A nobleman, or indeed any man of spirit, who was eluded of his right by a set of perjured fellows, would rather choose to combat it in the field and appeal to the judgement of God than leave his cause to them. Henry II first instituted that the sheriff and a certain number of persons who had oppor tunity to be best acquainted with the crime should have the whole affair laid before them, and that the person should be judged by their sentence. The law of England, always the friend of liberty, deserves praise in no instance more than in the careful provision of impartial juries. They who are chosen must be near the place where the crime was committed that they may have an opportunity of being acquainted with it. A great part of the jury may be laid aside by the panel1. He can lay aside thirty of their number, and he can challenge them either per capita, that is, any single juryman, or any number of them, if he suspect the sheriff of partiality. There may be many small causes for suspicion of partiality, and of the relevancy of these the court is judge. Nothing can be a greater security for life, liberty, and property than this institution; the judges are men of integrity, quite independent, holding their offices for life but are tied down by the law. The jurymen are your neighbours who are to judge of a fact upon which your life depends. They too can be laid aside for several reasons.
The laws of England with regard to juries are only defective in one point, in which they differ from the laws of Scotland. In England the whole jury must be unanimous, which renders the office of a juryman a very disagreeable service. A case may appear to you more clear than it does to me, and may really be different from what it appears to either of us, and yet there is a necessity for our agreement, and of consequence a necessity that one of us should swear contrary to our conscience. In criminal causes there is little danger, people are generally disposed to favour innocence and to preserve life. But in civil cases people are not so much troubled, they are not so much disposed to favour, and many of them are exceedingly doubtful. People of fashion are not fond of meddling in a jury attended with such inconveniences, and therefore only the meaner sort of people attend the judge. A great man would not choose to be so often called and returned, and perhaps treated in such a manner as no gentleman would choose to be. In this case the law providing for security has done too much. In this country, where unanimity is not required, the service is not so disagree able. Though a person differ from the majority he may stand by his opinion and is not forced to comply, and the 1 Scotch term for the accused.
people of the highest rank are willing to be jurors. In the actions which come before the court of chancery no jury is required, and the court of session in Scotland has taken them away in civil causes.
Besides the courts that have been mentioned there were several others erected by the king's patent. Henry VIII erected three. The court of high commission which sat upon ecclesiastics, the court of star chamber which takes in anything less than death, and the court of wardship which took care of the king's interest in these emoluments. This last was taken away by Charles II, who accepted a sum for the whole. It is now understood that the king cannot erect a court without consent of parliament. In no other country of Europe is the law so accurate as in Eng land, because it has not been of so long standing. The parliament of Paris was only erected about the time of Henry VIII of England. The British parliament consists of a great number of men, and these of great dignity \ All new courts disdain to follow the rules that were formerly established. All new courts are a great evil, because their power at first is not precisely determined, and therefore their decisions must be loose and inaccurate.
Thus we have considered the origin of government 1. Among a nation of savages; 2. Among a nation of shepherds; 3. The government of small clans with chieftains; the manner in which aristocracies arose; the fall of little re publics, conquering or defensive, and, lastly, the different forms of government that arose in Europe after the dis solution of arbitrary government.
[$ 13. Of the little Republics in Europe^ We shall next consider the origin of the little republics in Europe, and consider the rights of sovereign and subject.
1 This and the preceding sentence appear hopelessly corrupt.
First, of the origin of these republics. In some countries the provinces which were far from the seat of government sometimes became independent, as was the case in a good part of Germany and France during the time of Charle magne. Hugh Capet, who was chief justiciary1, got the government into his hands, but took only the title of the King of France. The Pope, by raising disturbances in Germany, for a long time hindered the Emperor Otho from taking possession of Italy. But when he got posses sion of it, on account of its distance, he could not retain it. Every little town formed itself into a republic, with a council of its own choosing at its head. Some towns in Germany being well fortified, such as Hamburgh, assumed the same privileges, and still in some measure retain2 them. The Italian towns are governed by a hereditary nobility, though the ancient republics were perfectly democratical. In Venice the people freely gave up the government, as they also did in Holland, because they could not support the trouble which it gave them. The Dutch and Swiss republics are formed into a respublica foederaia, and on this depends their strength.
We shall make some remarks on the manner of voting in these republics. When there are 100 votes and three candidates, it is possible that the person who is most odious may be elected. If A, B and C be candidates, there may be 34 votes for A, and 33 for B, and as many for C. Thus though there are 66 votes against A, he carries it. This must be still more the case when a criminal is brought before this assembly, for 34 may think him guilty of murder, 33 of manslaughter, and 33 of chance medley, yet he must suffer for murder3. To prevent this, in some of these republics they always bring the question 1 Gilbert, Treatise on the Court Philosophy, vol. ii.p. 241; Grotius, of Exchequer, 1758, p. 8. DP. iure belli et pacts, lib. ii. cap. v.
2 MS. reads ' retains.' § 19; Pufendorf, De tun' naturae 3 Hutcheson, System of Moral et gentium, lib. vii. cap. ii. § 18.
to a simple state. Is he guilty of murder or not? If there be three candidates, they put a previous vote, by which they exclude one of the candidates. In their senates the president never has a deliberative vote, but only a decisive one, because they will allow no member to have two votes. When there is an equality on both sides, nothing can be done, and therefore the business is not rejected, but referred to another meeting.
[§ 14. Of the Rights of Sovereigns] We shall now consider what duty is owing to the sovereign, and what is the proper punishment of dis obedience. Every attempt to overturn this power is in every nation considered as the greatest crime, and is called high treason. It is to be observed that there is a great difference between treason in monarchies and treason in republics. In the one it is an attempt on the king's person, and in the other on the liberties of the people, from whence we may see how the maxim of assassination came to be established in republics, and not in monarchies. It is the interest of monarchies that the person in authority be defended, whatever his title or conduct be, and that no person be allowed to enquire into them. The laws of monarchy are therefore unfavourable to the assassination of tyrants. In a republic the definition of a tyrant is quite clear. He is one who deprives the people of their liberty, levies armies and taxes, and puts the citizens to death as he pleases. This man cannot be brought to a court of justice, and therefore assassination is reckoned just and equitable. The present republican governments in Europe, indeed, do not encourage this maxim, because monarchies now set the fashion, and [other] governments] copy their pattern. According to our present notions Oliver Crom well's assassination is most opprobrious, but it would have appeared otherwise when the republics of Greece and Rome set the fashion.
Having thus taken notice of this difference between monarchical and republican governments, we shall next con sider the crimes reckoned treason. There are three kinds of treason or attacks upon the essence of government. First, perduellio, or an attempt to subvert the established government by force or rebellion. Secondly, proditio, or the joining of the enemy, delivering up to him forts, hos tages, &c., or the refusing to deliver up garrisons, &c., to the government when they demand them. This is called high treason. Thirdly, laesa tnaiestas, or an insult on the authority of the magistrate, which is not so heinous a crime as the two former. These were the kinds of treason among the Romans. Under the emperors these were blended, and a breach of the smallest, even in so trifling a manner as throwing a stone at the emperors statue, was punished with death1. Under Honorius, a conspiracy against any of the emperor's ministers was high treason '-'.
The crimes accounted treason by the English law 3 are the following. First, killing the king, wishing his death 4, or providing arms against him, with every attempt of this kind are punished capitally. The gunpowder plot was never executed, yet the conspirators were put to death. Had they intended only the death of some other person, they would not have been executed. Secondly, corrupting the king's wife or oldest daughter5, because these are 1 According to Marcianus (in to throw a stone at the emperor's Digest, lib. xlviii. tit. iv. 5), ' non statue on purpose, contrahit crimen maiestatis qui 2 Cod. lib. ix. tit. viii. 5.
statuas Caesaris vetustate corrup- 3 I.e. by 25 Ed. III. st. 5. cap. 2.
tas reficit, nee qui, lapide iactato 4 Compassing or imagining the incerto, fortuito statuam attigerit, death of the king or queen, or of crimen maiestatis commisit; et their eldest son.
ita Severus et Antoninus lulio 5 Eldest daughter unmarried, Cassiano rescripserunt.' It is or the wife of the king's eldest natural to infer that it was treason son.
affronts to the king, and may introduce a spurious offspring to the crown. If it be a younger daughter, the crime is not so great. Thirdly, levying a force against the king, aiding his enemies, &c. Fourthly, attempting the life of the chancellor or [judge of] assize when sitting in court; at another time it is only felony. Edward I, however, made the mere wounding of them not treason1. Fifthly, counterfeiting the king's great or privy seal, which is accounted an usurpation of the government, because by them the acts of government are carried on. Sixthly, counterfeiting of the king's coin, though this should not properly be treason, because it is no attempt on the essence of government. This crime is no more than forgery, and is usually punished as such'-. These were the branches of treason before the reformation. At this period Henry VIII declared himself head of the Church, assumed the sovereignty in ecclesiastical affairs as a part of his pre rogative, and established for this purpose the court of high commission to judge of ecclesiastics, which was abolished by Mary and restored by Elizabeth. As there was some danger then from the Popish party, the Catholic religion was considered as influencing the being of government, and therefore it was declared high treason to bring in any bull of the Pope, agnns dci, or whatever might support his authority3, to support popish seminaries4, or conceal 1 Under 25 Ed. Ill, 51.5. cap. 2, bowelled and quartered. Hawit was high treason to take, not kins, Pleas of the Crown, 3rd ed. merely to attempt, the life of a 1762, bk. ii. ch. xlviii. § 4. judge on the bench. Adam Smith 3 Under 13 Eliz. cap. 2, it was may have had authority for be- high treason to introduce a bull, lieving that before that statute an but to bring in or receive an attempt was high treason, in agnusdei only subjected offenders which case 'taking' should be to the pains of praemunire. Hawread for ' attempting ' and ' Ed- kins, P. C. bk. i. ch. xvii. § 75; ch. ward III' for ' Edward I, how- xix. § 24.
ever.' * It was treason under 27 Eliz.
2 Men convicted were drawn cap. 2, for a lay person to remain and hanged, but not disem- at a foreign popish seminary in popish priests l. This law, however proper then, should now be repealed, as there is no more occasion for it; no notice would now be taken of entertaining a popish priest.
During the civil war and usurpation of Cromwell it became a question how far it is lawful to resist the power of government. The court party believed the king to be absolute, and the popular doctrine was that the king is only a steward, and may be turned out at the pleasure of the people. After the restoration the court party got the better, and the other party became odious. At the Revolu tion the Stewart family were set aside for excellent reasons, and the succession established in the present family. By this the court party was turned out, and began to influence the dispositions of the people. It was therefore enacted that whoever should speak against the present succession should be guilty of treason2. This is now altogether unnecessary, because the government is now so well established that there is no reason to take notice of those who write or speak against it.
In Scotland the laws were very confused with regard to treason. Prejudicing the people against the king, or the king against the people, were made high treason. But by the Union they are made the same writh those of England3. These are the laws of Britain with respect to treason, and they subject the person who breaks them to the highest penalties. He is half hanged, and then his entrails are taken out, he forfeits his estate, his wife's dowry4, £c., defiance of a proclamation; but son, P. C. bk. i. ch. xvii. § 81.
only praemunire to send money 2 ' Speak ' should be; write or to such seminaries. Hawkins, print.' Mere speaking was only P. C. bk. i. ch. xvii. § 80; ch. xix. praemunire (4 Ann. cap. 8; and 6 § 26. Ann. cap. 7). Both offences are 1 Concealment of popish priests dealt with in Hawkins' chapter was only punishable by fine and on high treason, § 85.
imprisonment under 27 Eliz. cap. s 7 Ann. cap. 21, § 3.
2; but the offence is dealt with in 4 A mistake for ' his wife her Hawkins' chapter on high trea- dower.'
and corrupts his blood, so that his children cannot succeed.
Besides these there are other offences against the crown which do not subject to the pains of high treason, but to those of felony1. First, the making of coin below the standard 2 and the exportation of coin 3. From the notion that opulence consists in money, the parliament resolved that every one might have bullion coined without any expense of mintage4. Thus coined money was never below the value of bullion, and therefore there was a temptation to melt it down. This occasioned the act declaring this practice felony5. Secondly, any attempt to increase the coin, as by the philosopher's stone, was made felony6. Thirdly, destroying the king's armour is also felony7. Fourthly, any attempt against the king's officers is also felony 8, and in general whatever is felony against another person is felony against the king. If his pocket were picked it would be felony against him, as it is against any private gentleman, but the former offences are committed against him as king. There are some other small offences which may be done to the king which do not amount to felony, but incur what is called a praemunire. This is necessary to explain. In the reigns of King John and Henry III, 1 Hawkins, P. C. bk. i. ch. xviii. sembling Spanish ingots. This 2 7 Ann. cap. 25. practice was forbidden under a 3 An erroneous inference from penalty of ^500, by 6 & 7 Will, an incorrect statement in Haw- III. cap. 17, which is probably kins, P. C. bk. i. ch. xviii § 2. the act referred to. It does not Though still prohibited, exporta- declare the practice felony, tion had not been felony since but it is included in Hawkins' I573- See Hale, History of Hie chapter on ' Felonies against JVi'ds of the Crown, 1736, \ol. i. pp. the King,' P. C. bk. i. ch. xviii.
tation of foreign bullion was per- 7 31 Eliz. cap. 4.
mitted. English coin was then 8 3 Hen. VII. cap. 14, and 9 melted down into ingots re- Ann. cap. 16.
England was entirely under the dominion of the Pope. His legate brought over bulls, and raised contributions as he pleased, and long before the Reformation it was necessary to defend the king's liberty against the Pope. The king sometimes appointed one to a benefice, and the Pope another, and the Pope's candidate was often preferred. A law was therefore made forbidding any bull to be brought from Rome, or any appeal to be carried thither, and sub jecting every person who refused to ordain the king's presentee, to the penalties of praemunire regem, i. e. to fortify the king against the Pope x; the penalty was forfeiture of goods and outlawry. After Henry VIII was declared head of the Church by the Pope, it was made a praemunire to attack the king's prerogative with regard to ecclesiastical matters 2.
Beside these there are other offences called misprisions of treason, and are either positive or negative. Positive 3 misprision of treason is the not revealing an attempt against the king's person, his oldest daughter, or the 1 'Touching the etymology of (Praemonere) according to our this word (Pracmitnire) thus proverb: He that is well warned, affirmeth Sir Tho. Smith, "that is half armed. And of this I it is so-called of Praemuniting gather reason from the form of and fortifying and strengthening a writ, which is thus conceived in the Crown by the former statutes, the Old Nat. Br. fol. 143. Praeagainst the usurpation of foreign munire facias praedictum praeand unnatural power: " which positum, et I. R. procuratorem, opinion may receive some ground &c., quod tune sint coram nobis, from the statute an. 25 Ed. Ill, &c. For these words can be Stat. 6. c. i; or to grow from the referred to none but parties verb praemonere, that is to fore- charged with the offence.' Minwarn, as it were a forewarning to shaeus, The Guide into Tongues, any, lest he fall by such attempt 1626, p. 572. Coke, Inst. pt. iii.
into a Praemunire, being barba- ch. 53 says he that ispraemonitus rously turned for praemonere, is praemunitus.'
which corruption is taken from 2 Hawkins, P. C. bk. i. ch. xix.
the rude interpreters of the civil § 23; cf. ch. xvii. § 72.
and canon laws, who indeed do 3 A mistake for ' negative.'
use the effect (Praemunire) many Hawkins, P. C. bk. i ch. xx. §§ times for the efficient cause 1-6.
PUBLIC JURISPRUDENCE 6l heir of the kingdom. In like manner it is felony if you do not reveal any notice you receive of conspiracies and rebellions. Negative J misprision is the counterfeiting of foreign coin current in the kingdom, such as Portuguese gold, but it is not felony to counterfeit French or Dutch money, because they are not current here 2.
In the last place there are offences against the king called contempts, which are fourfold 3. First, contempt of the king's court or palaces. A riot committed in any of these is a great indignity offered to the sovereign. Riots in courts of justice are also severely punished, because there persons are often provoked, and if the law were not strict they would disturb the court4. Secondly, con tempt of the king's prerogative, such as disobeying the king when lawfully called, going out of the kingdom, when in office, without his leave, refusing to come after a summons under the privy seal, accepting a pension from a foreign prince without the king's permission 5, even in a man of letters Thirdly, contempt of the king's person and government (of which many are guilt)7), as by saying he is indolent or cowardly, that he has broken the corona tion oath, or to speak disrespectfully of his ministers c. These are never regarded at present, because the govern ment is so well established that writing and speaking cannot affect it. Fourthly, contempt of the king's title, by denying it, or preferring the Pretender's to it, by drinking the Pretender's health, or refusing the oath of allegiance and abjuration7; all these subject to imprison- 1 A mistake for 'positive.' to forge foreign coin which was Hawkins, P. C. bk. i. ch. xx. not current. Hawkins, P. C. bk.i. § 7. ch. xvii. $ 59; ch. xx. § 7.
2 This is altogether erroneous. 3 Hawkins,./3. C. bk. i. ch. xxi. Under i Mar. sess. 2. cap. 6, it ad init.
was high treason to forge any 4 Ibid. bk. i. ch. xxi. §§ 1-15.
foreign coin current by consent 5 Ibid. bk. i. ch. xxii.
of the crown; and under 14 Eliz. 6 Ibid. bk. i. ch. xx ii.
cap. 3, it was misprision of treason ~ Ibid. bk. i. ch. xxiv.
ment or fining, but not to the penalties of treason, felony, praemunire, nor outlawry.
Having considered the offences of the subject against the sovereign, we shall next treat of the crimes which the sovereign may commit against the subject. But first it is proper to consider who are subjects of a state.
The laws of different countries vary much with regard to those to whom the right of citizenship belongs. In most of the Swiss republics nothing gives the right of citizen ship, but to be born of a citizen. In Rome a family might be peregrina for four or five generations. At Athens no man was a citizen unless both father and mother were Athenians. It is to be observed that the Athenians were particularly sparing in giving the right of citizenship, because it entitled them to very great privileges. Even kings were denied that honour; all they did when they wanted to bestow a favour on a neighbouring king was to free him from taxes on imports. This they did to Arnyntas, father of Philip, king of Macedon. As aliens^ paid higher duties than natives, it was no small privilege to have these removed. After the defeat of the Persians their forces amounted to 25,000 men: their country was well cultivated: many cities in Asia paid them tribute. In consequence of this the people we're entitled to attendance on the court of justice, to have their children educated at the public expense, to have certain distributions of money among them, with many other emoluments. If the number of citizens increased, these privileges would not be so valuable, and therefore they were very jealous of it. As whoever comes into a parish in England must give a bond not to be burdensome to it l, so [in] all little