The same Statute declares the
Illegality
unusual and cruel Punishments.
Complete Collection of State Trials for Treason - v01
Edw.
(r) Ibid. cap. 22. ver. delicto, &c.
u) Exod. cap. 22. ver.
Instit. lib. tit.
Exod. cap. 21. ver, 24, 25. Levit. cap. 24. ver. 19, 20.
Grot. jur. bel. lib. cap. 20. 32.
Gen. cap. ver. Grot. jur. bel. lib. cap. See this Quastion discuss'd Bishop Barlow's Cases
- Deut. cap. 19.
- Conscience.
obligation. qua
c) b) a) c)&) de
“ 1
in de
7. 2 &3
9,
6. 4.
6. 1. §
2. de4&of
by
§
ex 1.
p. G.
all or be
2.
of§ §
5.
8 5.
1.
t) r)
4. §
2.
on
OF THE STATE TRIALS.
lawfully dispense with it in any case of a plain notorious Murder (d) : most certainly they ought not without some very important and pecu liar reasons, and not merely for favour or interest. The Law of God forbids, “that any satisfaction shall be taken for the life of a Murderer,
“ but he shall surely be put to death (se). ”
As to other less Offenders, it would be a more equitable and effectual
by their guilt incurred forfeiture wrong will done them disposing
forcibly carrying them away from their friends and relations into miserable Slavery America, without any better title, than what arises
taking away Life for every kind offence, consideration which the
xxxiii
Punishment to confine them to hard (f) labour at home; or, if they deserve sell them the Moors Spaniards abroad Idleness which the source their guilt, and generally draws them into the commission their crimes, and therefore nothing more proper re claim and deter them, than hard work and labour: however, they have
sure much more lawful method
kidnapping and stealing innocent men from off the African shore, and
-
from the difference
However, not enter into discussion the lawfulness justice
complexions.
later ages (g),
the punishments crimes widely different their own nature. The lower part mankind are apt dubious cases judge the heinous mess the Offence the severity the Punishments; but yet, when they see the same punishment annext, where the difference Guilt manifest and apparent, they soon lose the sense that extraordinary guilt, and instead conceiving worse the crime, they only blame
the cruelty the law. Further, when such numbers are continually ordered Execution, (as must the case where Death made the common punishment for ordinary crimes) the frequency the example
destroys the terror and makes less dreaded than going the Galleys any place hard labour. Besides, when the punishments
their natural liberty, that them that manner.
am making slaves than the practice
-
learned Spelman observes has not had due weight yet methinks long experience might have taught answer the purposes for which designed.
how ineffectual Death ultimum the highest rank; but when indiscriminately inflicted, leaves no room difference
supplicium, and therefore intended only for crimes
are very disproportionate the offence, defeats the end forasmuch those, who have any tenderness humanity
temper, will much rather forbear wholly prosecute, than
the Instruments putting such severe laws execution; instead there fore being means bringing the Offenders punishment, oftentimes the very reason, why they escape with impunity.
This severity our Law inflicting capital punishments upon the lighter crimes Pilfering and Thieving seems the more extraordinary, when one considers the great indulgence shewn one the first mag
nitude, and which productive much more mischievous
conse
our law and Adultery;
case
quences; mean Adultery, which
holden (h), does not
(d) By divers old Statutes Charter Murder. Dal. cap. 145.
granted
Pardon ought
general opinion, tho' must confess, see not, but that Adultery indictable our Law. Godolphin his Repertoriun, cap. 34. 10. admits
temporal offence against the peace the realm, for which sureties the peace
(e) Numb. cap. 35. ver. 31.
(f) Puf. Law Nat. lib. cap. 26.
(g) Spelm.
Mori Utopia, lib. verbo Lanicinium. See also Hales Hist.
notis 12. (h) Co. Instit. 488. Salk. Rep. 552. Galizard Rigault: This the
may required.
the turns leets VOL.
And lord Coke says, That ancient times was punishable
fine imprisonment the name Letherwite, Inst. -
them, their made
e
to in & toorofof
inby of
it of is
be
I. 2
of to it
is is
-or
in
as of ofis
of ofof ofto
be ofto
by I orin2
is
of of by of ofit,
ofin
of
a to
8. no
in
of I 8.
§ it
in to in a
byin
§ to
into it
in a
of is. in1. it
or
it so is
of isof
it
of of or of itis of of
of so
I orfor it a it,
of a
is so
of
itC. beofofof :
P. to us in
is of to
a is is ofano
2toisp. in be
- to it
Ito
by
bein of
is
be of
of
all
it its
xxxiv
PREFA C ES TO FORMER EDXTION 5
admit of any prosecution in a criminal way ; yet whether we consider
the guilt of the offender, or the mischief done to the injured party, there is no comparison between the one and the other. What proportion is there between a private Theft, perhaps of some trifle, which may soon be repaired, and the invasion of our neighbour's bed, (i) irreparably
robbing him of the satisfaction and comfort relations, and imposing upon him the charge
issue his own The one often done only
pressing hunger, but the other always
ungovern'd lust. Nor can with reason pretended, that the one crime public, the other private nature: the public con cerned the preservation the Property Goods, cannot less
the preservation the more valuable Rights, which affect the peace and quiet families. private stealing offence against the community The other much more so, having greater tendency
promote frays, and quarrels, public disturbances and breaches
the peace, from whence bloodshed and murders often ensue (k).
—What may the reason why our laws make light this enormous Crime, whether the countenance receives from great examples and the commonness the fault, some other reason, will not take upon me say but most certain that the laws other nations (l) had different sense and treated severer man ner by the Mosaic law was always punished with Death (m); and long before that law was esteemed “an Imiquity punished by
the Judges (n). ”—By old law Romulus (o) the Adulteress was put death; Adulterii convictam vir cognati, volent, necanto
and tho' afterwards the Civil Law, Ler Julia Adulteriis, punish’d it. only [per relagationem (p) with banishment, [per deportationem (g)] with transportation into some remote island; yet the, father the adulteress was permitted kill both his daughter and the adulterer (r), and some instances the husband had the same power (s); and chanced use that power case not allow'd, even then was not
—
seducing servant away from his master's service; and that the same reason extends
488. Inst. 206. allowed hands that indictment lies
the seducing wife away from her husband this there precedent Tremain's Entries, 299. 213. 214; The King against Montague, Jac. and another Offic. Cler. Pac. 311. Tho' these were Cases where the Wife went away with the Adulterer, yet the reason holds proportionably, where she
seduced breach her fidelity and trust, tho' without going away.
man debauch wife's sister, this has been held Misdemeanor punisi
family, confounding maintaining spurious allay the violence
gratify irregular and
able indictment information; this was the Case Ford lord Grey, for debauching the earl Berkeley's daughter: See Trials, 1682, and the
king against Heathcote, debauching Mr. Holworthy's daughter, Trin. Geo. (1720) Rot. 46. Sure not less injurious debauch another
man's wife; but still
severity the guilt
thought deserve;
betake himself civil action damages; tho' Mr. Wollaston says the
place cited below, the offence such made for the injured man thinks so, the law should framed, rather than aim making amends for after
(i) See Wollaston's Religion Nature,
nature that satisfaction can
generally does. this so,
deter from committing the crime, committed.
Ezek, cap. 18. ver. Methodo Historica, cap,
punishable only Misdemeanor, and not with that the offence requires, and the laws other nations have
that the injured party manner obliged
par.
(k) See Hen. (? ) Sce Godolph. Abridgment, cap. 34.
(m) Levit. cap. 20. ver, 10. Deuter. cap. 22. ver, 11; Susanna, ver. 41. John. cap. ver,
(n) Job, cap. 81. ver, 11. (o) See Bodinus
(p) Digest. Digest. (*) Digest,
divortiis repudis, lib. 24. tit. quaestionibus, lib. 48. 18. leg. Jul. adulter, lib, 48,
20.
(s) Ibid. 24.
tit. l.
6,it he is
&
it or is,
of
beto
to ofof
{ 1. Ifisato“toin
)q a be: toby3in ofas
addede
7,
to R. be a
or his p. It
a be to
all
3,5. g. in 1. i.
as
an
l.
4. -
be in beto
if of I of be
22.
no a
it A. of be
it uti to in
it an if his a
it, it as to 1 iftoB. to
to
in a of
it,
is
it,
tit. aas 5. § toas a
; of
of
so of it
is
8. 19. in a
or de
a beaso
If
he a 1 ofbe
of to p. 7 of
is
it an
a in a
at
c. isofofis it of
de&6. sofor ;
. to } an it
is &in ofis
it isIs ofas for p. on a be
it
of 8. ofit all ofof a
for
2. into he :
is of ofsoaa
OF THE STATE TRIALS.
to be punished with severity, but only to undergo a milder sort of punishment (t) : but at length when the empire became Christian, under the reign of Constantine, Adultery was made capital, Sacrilegos
nuptiarum gladio puniri oportet (u), and so it continued to Justinian's (1) time and long after. Some are of opinion that it was so even while the empire was Heathen, under the reign of Diocletian and Maximian, it being enumerated in one of their laws (y) among the capital Crimes.
has not, nor indeed could affix to each a certain and determinate Penalty, Misdemean
this is left to the discretion and prudence of the Judge, who may punish Ors. it either with Fine or Imprisonment (z), Pillory or Whipping, as he shall
think the nature of the crime deserves: but though he be intrusted with
so great power, yet he is not at liberty to do as he lists, and inflict what arbitrary punishments he pleases; due regard is to be had to the quality
and degree, to the estate and circumstances of the offender, and to the
greatness or smallness of the offence ; that Fine, which would be a mere
trifle to one man, may be the utter ruin and undoing of another; and
those marks of ignominy and disgrace, which would be shocking and grievous to a person of a liberal education, would be slighted and de
spised by one of the vulgar sort (a). A Judge therefore who uses this discretionary power to gratify a private revenge, or the rage of a party, by inflicting indefinite and perpetual Imprisonment, excessive and exor bitant Fines, unusual and cruel Punishments, is equally guilty of per verting justice and acting against law, as he, who in a case, where the law has ascertained the penalty, wilfully and knowingly varies from
As to smaller Crimes and Misdemeanors, they are differenced with Of smaller such a variety of extenuating or aggravating circumstances, that the law Crimes and
measures were man who guilty
observed these discretionary Punishments,
Misdemeanor might worse condition
capital crime; might exposed an Imprison
than had committed
indefinite and perpetual Imprisonment, punishment not favoured ment, and by law, being worse than death itself (b): nor does extravagant Fune.
Fine, which beyond the power the offender ever pay differ much from for his Imprisonment depend upon
raise, condition,
which will never his power perform, the same
absolute and unconditional
Rights and Liberties the Subject,” &c.
The same Statute declares the Illegality unusual and cruel Punishments.
was the non-observance these Rules, which occasioned the disso
were pay such
XX^{V
his offence deserves, lieu according
the offender not able
must then submit corporal punish
Fine
ment
luat
quires the saving every man's contenement, (viz. his means livelihood) extends only Amerciaments, which are ascertained Jury, and not Fines, which are imposed the Court; but nevertheless those Fines ought moderate and within bounds; where court has power setting Fines, that must understood setting reasonable Fines (e) “an excessive Fine,” says lord Coke, (f), “is against law,” (g), and declared the Act (h) for declaring the
the old Rule, Quinon habet crumena, cute (c. ). true, that Clause Magna Charta (d) which re
(t) Digest. leg. Cornel. sicariis, lib. 48. tit. leg. Jul. adulter. 38.
Digest.
Nat. Obs.
(u) Cod. (r) Institut. (y) Cod.
leg. Jul. adulter. lib. tit. 30. publicisjudiciis, lib. tit. 18.
transact. lib. tit. 18.
(a) Wollast. Relig. 25, Grot. jur. bel. lib.
Rep. 4. 44. (g) See John Hawles's Remarks Fitzharris's Trial, &c. (h) Gul, Mar, Sess, cap.
(2) Co. Rep. fo. 59.
Law Nat. cap. pejor morte, Trials.
Puf. (b) Vita (e) Co.
Rep. 38. (fl.
20. 33. (c) Co. Instit. 173. (d) Cap. 14.
on
a If Itto no
fo. of 8
de
in in as : . #
if as he
b. b. de ad
8 de ad
to to of
is
is
11 3.
§ b. de§
in
;if aabe
2 2. 8. 1
to he if
2. § i.
to
§ 2. 1.
§5.
a
byof to
85.
in ifor
it to
9. § l.
be it is
he
ii. 4.
2,sirc. of § ,
of
s. itisbe;
so ofis
be It it,
it
de of
&4. 9, bebe of
6. a. de l.
to by
by
to
be 1. 8. of to in
§ l. “ a bea
of
in a
an at a asa all
ad a a it, By
ofto
xxxvi
PREFACES TO FORMER EDITIONS
lution of the Star Chamber (i) ; a Court, which lord Coke (k) calls the most honourable in the Christian world, consisting of the chief officers of the kingdom, but as he observes (l) was of such a nature as most of all needed to be kept within proper bounds; might indeed have served
very good purposes, rightly managed, being chiefly intended for the correction scandalous Indecencies and Immoralities, which did
and
shame and infamy, and mark him out the public, trusted, but shunned and avoided
honest men peltings
person not
secure him justice ought
did He that time protect him when man
the hands liberty,
justice, and many
ordinary jurisdictions (m) but when wreak the malice particular persons, Court-Faction; when limits
not fall under the cognizance
once authority was abused
and prostituted the base ends
were observed the exercise
tences; when the Judges thereof, however dignified their posts, be
Jurisdiction, nor humanity Sen
disgrace
came . . " human nature their barbarous and cruel butch
erings, pretended Libels not only with perpetual Imprison
brandings
ments, but with the face and mutilation when
members;
the case was thus (as appears have been from some instances (n)
this Collection), was then high time tear the roots, Grievance longer borne with. Judge therefore ought
strictly careful that conform the rules law not only the nature the Punishment, but likewise the degrees thereof.
indeed easy matter settle the precise limits, how far Court Justice may every case must depend upon own particular cir
Johnson. -
These Punishments may doubt properly inflicted, where they are moderate degree and proportioned the offence only were be wished, that some better care were taken the execution them.
How unreasonable that Criminal sentenced whipt should lie the mercy vile executioner, and that should left the power common hangman make that Whipping severe favour
able pleases this respect must owned we are excelled foreign countries, where the magistrate, who the best judge the
Offender's guilt, present the execution the Sentence, and gives Pillory; the proper directions about
As the Pillory, that intended only expose the Offender
Whipping,
cumstances. But some Fines and some Punishments are
extravagant, that body can doubt their being such were the Fines Samuel Barnardiston and Mr. Hampden, such were the repeated Pilloryings and barbarous Whippings Oates, Dangerfield, and
creditable and exposed the mob, the assaults and injuries furious rabble, whereby
never did the law design that should
the prisoner
there, which was, that might
indeed surprizing neglect, that
taken suppress these practices, especially considering the fatal conse quences which have souletimes ensued from them, even the loss the poor man's life. not sufficient that whoever injures him this manner may punished for doing; for how possible that
disguised
man his condition should observe who
defeat one main design setting him publicly known and observed.
the law, and thereby disabled from beingo own defender, the law ought
cases able
defend himself; but when
the custody
(i) This was Court common Law confirmed Hen. solved Car. cap. 10. (k) Instit. 65.
(m) Ibid. 61. 63. (n) See Proceedings against Prynn, Proceedings against Bastwick, Burton, and Prynn, 1637.
cap. and dis (l) Ibid. 60. 1632-3, and-
effectual care has hitherto been
that does him the injury,
monstrously
or fit ofat to ofIt beain
to
is toainis
by intoabetoasaofofaits
10 ofhe
to a: sir
a toifbe is of no no
1. he so is a go into
of
Itor Inis no;itto by is to it it
if
he beto is to heto
: asit. atano bein its
is so to to of toof
atbeit toitsof 4 a no to bya
it beas
heis tobeto toAto
isisin ofhe toof it it
A.
D. 3 as ofit
byinat aisinof
is by to its of
it bebe so up of
A. 7. tobeall ;; by
D. heof ofas so by
aorin :
1. of is as as in no
inin * ofit ato its of It to of
to a
is to by toas
r
OF THE STATE TRIALS. ~.
be his security and defence against any injurious treatment. It cannot be pretended that this is altogether impracticable; experience shows us,
xxxvii
On Gaol. crs,
how effectually it may be done, when the officers find an advantage by
it; nor would there be any harm in the officers were obliged by
proper penalties take the same care without money, which they are well able do with
Another thing which our Law seems defective the want some further guard against the Packing Justies, and the Oppressions and Extortions Gaolers; but these are now under the consideration the legislature, who, hoped, will apply proper Remedies these growing evils (o). As the latter these, fear Remedy will effectual while they are suffer'd buy and sell their places; for while that permitted, they will under stronger temptations than men their charac
and function usually resist, exact more than their due the thing itself has an appearance hardship, force man into gaol against his
will, and yet oblige him pay for his admission into guilty, the punishment the law should deem'd sufficient; but innocent,
the hardship still the greater, especially where falls upon the indi and their
gent and necessitous. chiefly owing this that our Gaols swarm with multitudes miserable objects, who there year after year without. any hope redemption; that when they have suffer'd the penalty the law, they have severer punishment still undergo for the non-payment Fees (p), debt which forc’d upon them against their consent, and
often out their power ever discharge, whereby the poor wretches are effect condemned perpetual imprisonment; thing very odious
the eye the law, even for great and heinous crimes. How much better would for the public allow the Gaoler reasonable salary, instead these perquisites, which arise from the miseries the unfortunate, who
are thereby often necessitated take dishonest and unlawful methods enable themselves pay them By the common Law (qJ, avoid extortion and grievance the subject, sherifi, coroner, gaoler other
the king's ministers ought take any fee reward for any matter touching their offices, but the king only. This extended whose offices did any ways concern the administration execution justice,
'ces.
the subject, the king's service (r). -Fortescue the Sheriff's Oath upon entering into his office, take nothing any other man than the king by means his office. ” Divers acts parliament (t) have been
the common good (s) relates part
“That
colour
made
Maxim
could take Fee for doing their office, but the king, then had they colour exact any thing the subject, who knew that they ought take nothing them but after this rule
shall receive
affirmance this, which Lord Coke (u) calls “a fundamental the Common Law;” adds further, that while Officers
was alter’d by some acts parliament, which gave the king Fees some particular cases taken
the Common Law the said ministers
the subject,
not credible what Extortions and Oppressions have thereupon ensued;
whereas before without any taking their office was done, now office was done without taking, the Officers being fetter'd with
golden Fees, setters the suppression subversion
(o) Both these Grievances have been since remedied former the Geo. cap. 25. and the latter Geo.
Justice” (r).
some measure, the cap. 22. (p) Mir Justices, 53. says, Abuse that Prisoners, any for
them, should pay anything their entrance into coming out Gaol.
(? ) See Co. Inst. 74, and the Authorities there cited. Co. Inst. 209.
(*) De laud. Leg. Angl. cap. 24. Mag. Chart, cap. 35. West. cap. and cap. 26. (u Instit. 210. (r) Instit. 176.
t( )
; tototo toto It he be
2
or
an orall ofno to
by to lie if
2
all
1. or 10.
ofto to
be
for
of or of issoIttooftoisit. of to is
For of
of
or of of in of ter so 7.
by
at
to no
in or he
it of
be of of
of it
c. 3 as no as a is to
5. to aofofof
)§ inatofto
. 1. 2. of to
to
n. to ofall ofof
be
itin
is at of or
to of
ofit,
2 beoforatoaI
74 “orofais
&
( 2. in
r) of 2 of
oftoof
of
it
no
it is
allto
in is
of
,
isbe
all
or
to
of of
it:no
if ifhe;
of
is
xxxviii PREFACES TO FORMER ED1TIONS
instituted by the law the land, homines diu detineantur prisona, but that they might receive plenam celerem justitiam: adds, that Gaols
ought delivered thrice year, ottner, need be. Of much consequence does the law esteem be, that the Abbot St. Albans who had grant Gaol and Gaol-delivery, was adjudged have for
feited his franchise for unreasonable delay making Delivery
The true De
sign of Gaol veries can never answer'd This Commission, says lord Coke (y),
deliveries;
While Prisoners are thus long detained, the true design Gaol-Deli
Gaol-deliveries, after the law has done with them, they may still detained for Fees, which they will never able pay —Another design Gaol-deli
veries was by clearing the Prisons make room for new comers; but the Discharge the old Prisoners being these means prevented, the
his Gaol. But what are the Prisoners benefited
new ones renders the croud great, that the place inhabitants: this, together with the filth and their miserable poverty and want convenien
continual addition
becomes too strait for
nastiness occasion'd
cies, the cause those contagious distempers which are wont vio
lently rage many our prisons, not confining themselves within
the prison-walls, but sometimes spreading their infection the very
court where the prisoners are brought Trial, judges, juries, counsel, and who attend there. this recorded History (a) have happen'd
the small hazard dreadful instance the twentieth year
The conse quences the
queen Elizabeth Oxford assizes, when the Prisoners brought such stench with them into court, that the Lord Chief Baron Bell, the Sheriff,
several Counsel, almost the jurors, and near three hundred others, died
within the space forty hours after could wish our own times had not furnished with fresher instance this kind.
further Mischief arising from this long Detention Prisoners that
defeats the principal end law and justice. All Punishments common Ma low capital are intended reform the criminal, and deter him from
be
magement Gaols.
fending again: but our Gaols are commonly managed, fear'd,
they breed and harden more rogues, than the law either reclaims removes. #. prisoners are indulged great liberty rioting and
debauchery, keepeirs,. advantagearising
which the who have the from the
sale the liquors, find their account promoting; the young novices are permitted contract intimate acquaintance and familiarity
with the old offenders, that our Gaols are rather the schools and nurseries manner roguery and wickedness, than proper places for correc
tion and amendment. closerved, that they who enter
ers,
raw and unexperienc'd offend with some sense shame and
soon grow impudent and harden’d villains, entering themselves
members gang, wherein they are not only instructed the theory, but experienc'd the practice their wicked arts. This may seem strange some, who think they are restrained, (at least while they are
prisoners) from doing mischief without doors; yet not without reason apprehended others, that they sometimes find means make excur
sions, which hard accounted for without the connivance per mission their keepers, who no doubt take care be no losers
by and though this may favour not usually shown any but inferior rogues, who are detained for smaller crimes; yet could mention
instance (attested person undoubted credit) one who was
committed while was mitting fact
Newgate for breaking open house the night-time, and suppos'd custody for that offence, was apprehended com
the like kind remote part the town.
(y) Instit. 168. (z) Co. Instit. 43. (a) See Baker's Chronicle, 353.
modesty,
p. an of itA
it all
4: ofisis
ahe to to
a to be
of of
to is ato up
of
ill of
p. ofinbybeofto usininof
in ofatof ofbe
to asa ofa
by byof
a be It to all of its be is
an
2 soofalla:
in a
be alltotoet
an
by
of a
of
it ne toor is
anin so
to
a
of a to inif
in it of inA so by
is of behe
ofI to to it in in is
no
of
to to in
of
of to
in of
or
be
is,
so
so
in or
of
a ofof
of
of ) if (:
it. ofI
to
OF THE STATE TRIA LS.
Another matter of complaint that intolerable and inhuman practice many Gaolers, who extort from their unhappy guests such sums
xxxix
The Use
they shall think exact, thrust them soon they arrive within Fetters
their dominions, into stinking dungeons, loading them with Fetters and
awls.
Irons till they can bring them mands (b): the pretence indeed prisoners, and therefore ought
compliance with their unjust de that they are answerable for their allowed the use proper means
secure them.
(r) Ibid. cap. 22. ver. delicto, &c.
u) Exod. cap. 22. ver.
Instit. lib. tit.
Exod. cap. 21. ver, 24, 25. Levit. cap. 24. ver. 19, 20.
Grot. jur. bel. lib. cap. 20. 32.
Gen. cap. ver. Grot. jur. bel. lib. cap. See this Quastion discuss'd Bishop Barlow's Cases
- Deut. cap. 19.
- Conscience.
obligation. qua
c) b) a) c)&) de
“ 1
in de
7. 2 &3
9,
6. 4.
6. 1. §
2. de4&of
by
§
ex 1.
p. G.
all or be
2.
of§ §
5.
8 5.
1.
t) r)
4. §
2.
on
OF THE STATE TRIALS.
lawfully dispense with it in any case of a plain notorious Murder (d) : most certainly they ought not without some very important and pecu liar reasons, and not merely for favour or interest. The Law of God forbids, “that any satisfaction shall be taken for the life of a Murderer,
“ but he shall surely be put to death (se). ”
As to other less Offenders, it would be a more equitable and effectual
by their guilt incurred forfeiture wrong will done them disposing
forcibly carrying them away from their friends and relations into miserable Slavery America, without any better title, than what arises
taking away Life for every kind offence, consideration which the
xxxiii
Punishment to confine them to hard (f) labour at home; or, if they deserve sell them the Moors Spaniards abroad Idleness which the source their guilt, and generally draws them into the commission their crimes, and therefore nothing more proper re claim and deter them, than hard work and labour: however, they have
sure much more lawful method
kidnapping and stealing innocent men from off the African shore, and
-
from the difference
However, not enter into discussion the lawfulness justice
complexions.
later ages (g),
the punishments crimes widely different their own nature. The lower part mankind are apt dubious cases judge the heinous mess the Offence the severity the Punishments; but yet, when they see the same punishment annext, where the difference Guilt manifest and apparent, they soon lose the sense that extraordinary guilt, and instead conceiving worse the crime, they only blame
the cruelty the law. Further, when such numbers are continually ordered Execution, (as must the case where Death made the common punishment for ordinary crimes) the frequency the example
destroys the terror and makes less dreaded than going the Galleys any place hard labour. Besides, when the punishments
their natural liberty, that them that manner.
am making slaves than the practice
-
learned Spelman observes has not had due weight yet methinks long experience might have taught answer the purposes for which designed.
how ineffectual Death ultimum the highest rank; but when indiscriminately inflicted, leaves no room difference
supplicium, and therefore intended only for crimes
are very disproportionate the offence, defeats the end forasmuch those, who have any tenderness humanity
temper, will much rather forbear wholly prosecute, than
the Instruments putting such severe laws execution; instead there fore being means bringing the Offenders punishment, oftentimes the very reason, why they escape with impunity.
This severity our Law inflicting capital punishments upon the lighter crimes Pilfering and Thieving seems the more extraordinary, when one considers the great indulgence shewn one the first mag
nitude, and which productive much more mischievous
conse
our law and Adultery;
case
quences; mean Adultery, which
holden (h), does not
(d) By divers old Statutes Charter Murder. Dal. cap. 145.
granted
Pardon ought
general opinion, tho' must confess, see not, but that Adultery indictable our Law. Godolphin his Repertoriun, cap. 34. 10. admits
temporal offence against the peace the realm, for which sureties the peace
(e) Numb. cap. 35. ver. 31.
(f) Puf. Law Nat. lib. cap. 26.
(g) Spelm.
Mori Utopia, lib. verbo Lanicinium. See also Hales Hist.
notis 12. (h) Co. Instit. 488. Salk. Rep. 552. Galizard Rigault: This the
may required.
the turns leets VOL.
And lord Coke says, That ancient times was punishable
fine imprisonment the name Letherwite, Inst. -
them, their made
e
to in & toorofof
inby of
it of is
be
I. 2
of to it
is is
-or
in
as of ofis
of ofof ofto
be ofto
by I orin2
is
of of by of ofit,
ofin
of
a to
8. no
in
of I 8.
§ it
in to in a
byin
§ to
into it
in a
of is. in1. it
or
it so is
of isof
it
of of or of itis of of
of so
I orfor it a it,
of a
is so
of
itC. beofofof :
P. to us in
is of to
a is is ofano
2toisp. in be
- to it
Ito
by
bein of
is
be of
of
all
it its
xxxiv
PREFA C ES TO FORMER EDXTION 5
admit of any prosecution in a criminal way ; yet whether we consider
the guilt of the offender, or the mischief done to the injured party, there is no comparison between the one and the other. What proportion is there between a private Theft, perhaps of some trifle, which may soon be repaired, and the invasion of our neighbour's bed, (i) irreparably
robbing him of the satisfaction and comfort relations, and imposing upon him the charge
issue his own The one often done only
pressing hunger, but the other always
ungovern'd lust. Nor can with reason pretended, that the one crime public, the other private nature: the public con cerned the preservation the Property Goods, cannot less
the preservation the more valuable Rights, which affect the peace and quiet families. private stealing offence against the community The other much more so, having greater tendency
promote frays, and quarrels, public disturbances and breaches
the peace, from whence bloodshed and murders often ensue (k).
—What may the reason why our laws make light this enormous Crime, whether the countenance receives from great examples and the commonness the fault, some other reason, will not take upon me say but most certain that the laws other nations (l) had different sense and treated severer man ner by the Mosaic law was always punished with Death (m); and long before that law was esteemed “an Imiquity punished by
the Judges (n). ”—By old law Romulus (o) the Adulteress was put death; Adulterii convictam vir cognati, volent, necanto
and tho' afterwards the Civil Law, Ler Julia Adulteriis, punish’d it. only [per relagationem (p) with banishment, [per deportationem (g)] with transportation into some remote island; yet the, father the adulteress was permitted kill both his daughter and the adulterer (r), and some instances the husband had the same power (s); and chanced use that power case not allow'd, even then was not
—
seducing servant away from his master's service; and that the same reason extends
488. Inst. 206. allowed hands that indictment lies
the seducing wife away from her husband this there precedent Tremain's Entries, 299. 213. 214; The King against Montague, Jac. and another Offic. Cler. Pac. 311. Tho' these were Cases where the Wife went away with the Adulterer, yet the reason holds proportionably, where she
seduced breach her fidelity and trust, tho' without going away.
man debauch wife's sister, this has been held Misdemeanor punisi
family, confounding maintaining spurious allay the violence
gratify irregular and
able indictment information; this was the Case Ford lord Grey, for debauching the earl Berkeley's daughter: See Trials, 1682, and the
king against Heathcote, debauching Mr. Holworthy's daughter, Trin. Geo. (1720) Rot. 46. Sure not less injurious debauch another
man's wife; but still
severity the guilt
thought deserve;
betake himself civil action damages; tho' Mr. Wollaston says the
place cited below, the offence such made for the injured man thinks so, the law should framed, rather than aim making amends for after
(i) See Wollaston's Religion Nature,
nature that satisfaction can
generally does. this so,
deter from committing the crime, committed.
Ezek, cap. 18. ver. Methodo Historica, cap,
punishable only Misdemeanor, and not with that the offence requires, and the laws other nations have
that the injured party manner obliged
par.
(k) See Hen. (? ) Sce Godolph. Abridgment, cap. 34.
(m) Levit. cap. 20. ver, 10. Deuter. cap. 22. ver, 11; Susanna, ver. 41. John. cap. ver,
(n) Job, cap. 81. ver, 11. (o) See Bodinus
(p) Digest. Digest. (*) Digest,
divortiis repudis, lib. 24. tit. quaestionibus, lib. 48. 18. leg. Jul. adulter, lib, 48,
20.
(s) Ibid. 24.
tit. l.
6,it he is
&
it or is,
of
beto
to ofof
{ 1. Ifisato“toin
)q a be: toby3in ofas
addede
7,
to R. be a
or his p. It
a be to
all
3,5. g. in 1. i.
as
an
l.
4. -
be in beto
if of I of be
22.
no a
it A. of be
it uti to in
it an if his a
it, it as to 1 iftoB. to
to
in a of
it,
is
it,
tit. aas 5. § toas a
; of
of
so of it
is
8. 19. in a
or de
a beaso
If
he a 1 ofbe
of to p. 7 of
is
it an
a in a
at
c. isofofis it of
de&6. sofor ;
. to } an it
is &in ofis
it isIs ofas for p. on a be
it
of 8. ofit all ofof a
for
2. into he :
is of ofsoaa
OF THE STATE TRIALS.
to be punished with severity, but only to undergo a milder sort of punishment (t) : but at length when the empire became Christian, under the reign of Constantine, Adultery was made capital, Sacrilegos
nuptiarum gladio puniri oportet (u), and so it continued to Justinian's (1) time and long after. Some are of opinion that it was so even while the empire was Heathen, under the reign of Diocletian and Maximian, it being enumerated in one of their laws (y) among the capital Crimes.
has not, nor indeed could affix to each a certain and determinate Penalty, Misdemean
this is left to the discretion and prudence of the Judge, who may punish Ors. it either with Fine or Imprisonment (z), Pillory or Whipping, as he shall
think the nature of the crime deserves: but though he be intrusted with
so great power, yet he is not at liberty to do as he lists, and inflict what arbitrary punishments he pleases; due regard is to be had to the quality
and degree, to the estate and circumstances of the offender, and to the
greatness or smallness of the offence ; that Fine, which would be a mere
trifle to one man, may be the utter ruin and undoing of another; and
those marks of ignominy and disgrace, which would be shocking and grievous to a person of a liberal education, would be slighted and de
spised by one of the vulgar sort (a). A Judge therefore who uses this discretionary power to gratify a private revenge, or the rage of a party, by inflicting indefinite and perpetual Imprisonment, excessive and exor bitant Fines, unusual and cruel Punishments, is equally guilty of per verting justice and acting against law, as he, who in a case, where the law has ascertained the penalty, wilfully and knowingly varies from
As to smaller Crimes and Misdemeanors, they are differenced with Of smaller such a variety of extenuating or aggravating circumstances, that the law Crimes and
measures were man who guilty
observed these discretionary Punishments,
Misdemeanor might worse condition
capital crime; might exposed an Imprison
than had committed
indefinite and perpetual Imprisonment, punishment not favoured ment, and by law, being worse than death itself (b): nor does extravagant Fune.
Fine, which beyond the power the offender ever pay differ much from for his Imprisonment depend upon
raise, condition,
which will never his power perform, the same
absolute and unconditional
Rights and Liberties the Subject,” &c.
The same Statute declares the Illegality unusual and cruel Punishments.
was the non-observance these Rules, which occasioned the disso
were pay such
XX^{V
his offence deserves, lieu according
the offender not able
must then submit corporal punish
Fine
ment
luat
quires the saving every man's contenement, (viz. his means livelihood) extends only Amerciaments, which are ascertained Jury, and not Fines, which are imposed the Court; but nevertheless those Fines ought moderate and within bounds; where court has power setting Fines, that must understood setting reasonable Fines (e) “an excessive Fine,” says lord Coke, (f), “is against law,” (g), and declared the Act (h) for declaring the
the old Rule, Quinon habet crumena, cute (c. ). true, that Clause Magna Charta (d) which re
(t) Digest. leg. Cornel. sicariis, lib. 48. tit. leg. Jul. adulter. 38.
Digest.
Nat. Obs.
(u) Cod. (r) Institut. (y) Cod.
leg. Jul. adulter. lib. tit. 30. publicisjudiciis, lib. tit. 18.
transact. lib. tit. 18.
(a) Wollast. Relig. 25, Grot. jur. bel. lib.
Rep. 4. 44. (g) See John Hawles's Remarks Fitzharris's Trial, &c. (h) Gul, Mar, Sess, cap.
(2) Co. Rep. fo. 59.
Law Nat. cap. pejor morte, Trials.
Puf. (b) Vita (e) Co.
Rep. 38. (fl.
20. 33. (c) Co. Instit. 173. (d) Cap. 14.
on
a If Itto no
fo. of 8
de
in in as : . #
if as he
b. b. de ad
8 de ad
to to of
is
is
11 3.
§ b. de§
in
;if aabe
2 2. 8. 1
to he if
2. § i.
to
§ 2. 1.
§5.
a
byof to
85.
in ifor
it to
9. § l.
be it is
he
ii. 4.
2,sirc. of § ,
of
s. itisbe;
so ofis
be It it,
it
de of
&4. 9, bebe of
6. a. de l.
to by
by
to
be 1. 8. of to in
§ l. “ a bea
of
in a
an at a asa all
ad a a it, By
ofto
xxxvi
PREFACES TO FORMER EDITIONS
lution of the Star Chamber (i) ; a Court, which lord Coke (k) calls the most honourable in the Christian world, consisting of the chief officers of the kingdom, but as he observes (l) was of such a nature as most of all needed to be kept within proper bounds; might indeed have served
very good purposes, rightly managed, being chiefly intended for the correction scandalous Indecencies and Immoralities, which did
and
shame and infamy, and mark him out the public, trusted, but shunned and avoided
honest men peltings
person not
secure him justice ought
did He that time protect him when man
the hands liberty,
justice, and many
ordinary jurisdictions (m) but when wreak the malice particular persons, Court-Faction; when limits
not fall under the cognizance
once authority was abused
and prostituted the base ends
were observed the exercise
tences; when the Judges thereof, however dignified their posts, be
Jurisdiction, nor humanity Sen
disgrace
came . . " human nature their barbarous and cruel butch
erings, pretended Libels not only with perpetual Imprison
brandings
ments, but with the face and mutilation when
members;
the case was thus (as appears have been from some instances (n)
this Collection), was then high time tear the roots, Grievance longer borne with. Judge therefore ought
strictly careful that conform the rules law not only the nature the Punishment, but likewise the degrees thereof.
indeed easy matter settle the precise limits, how far Court Justice may every case must depend upon own particular cir
Johnson. -
These Punishments may doubt properly inflicted, where they are moderate degree and proportioned the offence only were be wished, that some better care were taken the execution them.
How unreasonable that Criminal sentenced whipt should lie the mercy vile executioner, and that should left the power common hangman make that Whipping severe favour
able pleases this respect must owned we are excelled foreign countries, where the magistrate, who the best judge the
Offender's guilt, present the execution the Sentence, and gives Pillory; the proper directions about
As the Pillory, that intended only expose the Offender
Whipping,
cumstances. But some Fines and some Punishments are
extravagant, that body can doubt their being such were the Fines Samuel Barnardiston and Mr. Hampden, such were the repeated Pilloryings and barbarous Whippings Oates, Dangerfield, and
creditable and exposed the mob, the assaults and injuries furious rabble, whereby
never did the law design that should
the prisoner
there, which was, that might
indeed surprizing neglect, that
taken suppress these practices, especially considering the fatal conse quences which have souletimes ensued from them, even the loss the poor man's life. not sufficient that whoever injures him this manner may punished for doing; for how possible that
disguised
man his condition should observe who
defeat one main design setting him publicly known and observed.
the law, and thereby disabled from beingo own defender, the law ought
cases able
defend himself; but when
the custody
(i) This was Court common Law confirmed Hen. solved Car. cap. 10. (k) Instit. 65.
(m) Ibid. 61. 63. (n) See Proceedings against Prynn, Proceedings against Bastwick, Burton, and Prynn, 1637.
cap. and dis (l) Ibid. 60. 1632-3, and-
effectual care has hitherto been
that does him the injury,
monstrously
or fit ofat to ofIt beain
to
is toainis
by intoabetoasaofofaits
10 ofhe
to a: sir
a toifbe is of no no
1. he so is a go into
of
Itor Inis no;itto by is to it it
if
he beto is to heto
: asit. atano bein its
is so to to of toof
atbeit toitsof 4 a no to bya
it beas
heis tobeto toAto
isisin ofhe toof it it
A.
D. 3 as ofit
byinat aisinof
is by to its of
it bebe so up of
A. 7. tobeall ;; by
D. heof ofas so by
aorin :
1. of is as as in no
inin * ofit ato its of It to of
to a
is to by toas
r
OF THE STATE TRIALS. ~.
be his security and defence against any injurious treatment. It cannot be pretended that this is altogether impracticable; experience shows us,
xxxvii
On Gaol. crs,
how effectually it may be done, when the officers find an advantage by
it; nor would there be any harm in the officers were obliged by
proper penalties take the same care without money, which they are well able do with
Another thing which our Law seems defective the want some further guard against the Packing Justies, and the Oppressions and Extortions Gaolers; but these are now under the consideration the legislature, who, hoped, will apply proper Remedies these growing evils (o). As the latter these, fear Remedy will effectual while they are suffer'd buy and sell their places; for while that permitted, they will under stronger temptations than men their charac
and function usually resist, exact more than their due the thing itself has an appearance hardship, force man into gaol against his
will, and yet oblige him pay for his admission into guilty, the punishment the law should deem'd sufficient; but innocent,
the hardship still the greater, especially where falls upon the indi and their
gent and necessitous. chiefly owing this that our Gaols swarm with multitudes miserable objects, who there year after year without. any hope redemption; that when they have suffer'd the penalty the law, they have severer punishment still undergo for the non-payment Fees (p), debt which forc’d upon them against their consent, and
often out their power ever discharge, whereby the poor wretches are effect condemned perpetual imprisonment; thing very odious
the eye the law, even for great and heinous crimes. How much better would for the public allow the Gaoler reasonable salary, instead these perquisites, which arise from the miseries the unfortunate, who
are thereby often necessitated take dishonest and unlawful methods enable themselves pay them By the common Law (qJ, avoid extortion and grievance the subject, sherifi, coroner, gaoler other
the king's ministers ought take any fee reward for any matter touching their offices, but the king only. This extended whose offices did any ways concern the administration execution justice,
'ces.
the subject, the king's service (r). -Fortescue the Sheriff's Oath upon entering into his office, take nothing any other man than the king by means his office. ” Divers acts parliament (t) have been
the common good (s) relates part
“That
colour
made
Maxim
could take Fee for doing their office, but the king, then had they colour exact any thing the subject, who knew that they ought take nothing them but after this rule
shall receive
affirmance this, which Lord Coke (u) calls “a fundamental the Common Law;” adds further, that while Officers
was alter’d by some acts parliament, which gave the king Fees some particular cases taken
the Common Law the said ministers
the subject,
not credible what Extortions and Oppressions have thereupon ensued;
whereas before without any taking their office was done, now office was done without taking, the Officers being fetter'd with
golden Fees, setters the suppression subversion
(o) Both these Grievances have been since remedied former the Geo. cap. 25. and the latter Geo.
Justice” (r).
some measure, the cap. 22. (p) Mir Justices, 53. says, Abuse that Prisoners, any for
them, should pay anything their entrance into coming out Gaol.
(? ) See Co. Inst. 74, and the Authorities there cited. Co. Inst. 209.
(*) De laud. Leg. Angl. cap. 24. Mag. Chart, cap. 35. West. cap. and cap. 26. (u Instit. 210. (r) Instit. 176.
t( )
; tototo toto It he be
2
or
an orall ofno to
by to lie if
2
all
1. or 10.
ofto to
be
for
of or of issoIttooftoisit. of to is
For of
of
or of of in of ter so 7.
by
at
to no
in or he
it of
be of of
of it
c. 3 as no as a is to
5. to aofofof
)§ inatofto
. 1. 2. of to
to
n. to ofall ofof
be
itin
is at of or
to of
ofit,
2 beoforatoaI
74 “orofais
&
( 2. in
r) of 2 of
oftoof
of
it
no
it is
allto
in is
of
,
isbe
all
or
to
of of
it:no
if ifhe;
of
is
xxxviii PREFACES TO FORMER ED1TIONS
instituted by the law the land, homines diu detineantur prisona, but that they might receive plenam celerem justitiam: adds, that Gaols
ought delivered thrice year, ottner, need be. Of much consequence does the law esteem be, that the Abbot St. Albans who had grant Gaol and Gaol-delivery, was adjudged have for
feited his franchise for unreasonable delay making Delivery
The true De
sign of Gaol veries can never answer'd This Commission, says lord Coke (y),
deliveries;
While Prisoners are thus long detained, the true design Gaol-Deli
Gaol-deliveries, after the law has done with them, they may still detained for Fees, which they will never able pay —Another design Gaol-deli
veries was by clearing the Prisons make room for new comers; but the Discharge the old Prisoners being these means prevented, the
his Gaol. But what are the Prisoners benefited
new ones renders the croud great, that the place inhabitants: this, together with the filth and their miserable poverty and want convenien
continual addition
becomes too strait for
nastiness occasion'd
cies, the cause those contagious distempers which are wont vio
lently rage many our prisons, not confining themselves within
the prison-walls, but sometimes spreading their infection the very
court where the prisoners are brought Trial, judges, juries, counsel, and who attend there. this recorded History (a) have happen'd
the small hazard dreadful instance the twentieth year
The conse quences the
queen Elizabeth Oxford assizes, when the Prisoners brought such stench with them into court, that the Lord Chief Baron Bell, the Sheriff,
several Counsel, almost the jurors, and near three hundred others, died
within the space forty hours after could wish our own times had not furnished with fresher instance this kind.
further Mischief arising from this long Detention Prisoners that
defeats the principal end law and justice. All Punishments common Ma low capital are intended reform the criminal, and deter him from
be
magement Gaols.
fending again: but our Gaols are commonly managed, fear'd,
they breed and harden more rogues, than the law either reclaims removes. #. prisoners are indulged great liberty rioting and
debauchery, keepeirs,. advantagearising
which the who have the from the
sale the liquors, find their account promoting; the young novices are permitted contract intimate acquaintance and familiarity
with the old offenders, that our Gaols are rather the schools and nurseries manner roguery and wickedness, than proper places for correc
tion and amendment. closerved, that they who enter
ers,
raw and unexperienc'd offend with some sense shame and
soon grow impudent and harden’d villains, entering themselves
members gang, wherein they are not only instructed the theory, but experienc'd the practice their wicked arts. This may seem strange some, who think they are restrained, (at least while they are
prisoners) from doing mischief without doors; yet not without reason apprehended others, that they sometimes find means make excur
sions, which hard accounted for without the connivance per mission their keepers, who no doubt take care be no losers
by and though this may favour not usually shown any but inferior rogues, who are detained for smaller crimes; yet could mention
instance (attested person undoubted credit) one who was
committed while was mitting fact
Newgate for breaking open house the night-time, and suppos'd custody for that offence, was apprehended com
the like kind remote part the town.
(y) Instit. 168. (z) Co. Instit. 43. (a) See Baker's Chronicle, 353.
modesty,
p. an of itA
it all
4: ofisis
ahe to to
a to be
of of
to is ato up
of
ill of
p. ofinbybeofto usininof
in ofatof ofbe
to asa ofa
by byof
a be It to all of its be is
an
2 soofalla:
in a
be alltotoet
an
by
of a
of
it ne toor is
anin so
to
a
of a to inif
in it of inA so by
is of behe
ofI to to it in in is
no
of
to to in
of
of to
in of
or
be
is,
so
so
in or
of
a ofof
of
of ) if (:
it. ofI
to
OF THE STATE TRIA LS.
Another matter of complaint that intolerable and inhuman practice many Gaolers, who extort from their unhappy guests such sums
xxxix
The Use
they shall think exact, thrust them soon they arrive within Fetters
their dominions, into stinking dungeons, loading them with Fetters and
awls.
Irons till they can bring them mands (b): the pretence indeed prisoners, and therefore ought
compliance with their unjust de that they are answerable for their allowed the use proper means
secure them.
