pal arguments: which, however they may hold upon the continent, where the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a system, and interwoven in our very constitution. Therefore our laws ought by no means to be taxed with being unmerciful for denying this privilege to the necessitous; especially when we consider, that the king, on the representation of his ministers of justice, hath a power to soften the law, and to extend mercy in cases of peculiar hardship. An advantage which is wanting in many states, particularly those which are democratical, and these have in its stead introduced and adopted, in the body of the law itself, a multitude of circumstances tending to alleviate its rigour. the founders of our constitution thought it better to vest in the crown the power of pardoning particular objects of compassion, than to countenance and establish theft by one general undistinguishing law.

But

To these several cases, in which the incapacity of committing crimes arises from a deficiency of the will, we may add one more, which the law supposes an incapacity of doing wrong, from the excellence and perfection of the person; which extend as well to the will as to the other qualities of his mind. I mean the case of the king; who, by virtue of his royal prerogative, is not under the coercive power of the law; which will not suppose him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency, to forbear any idle inquiries, of what would have been the consequence if the king were to act thus and thus: since the law deems so highly of his wisdom and virtue, as not even to presume it possible for him to do any thing inconsistent with his station and dignity; and therefore has made no provision to remedy such a grievance.

QUESTIONS.

To what single consideration may all these " excuses " be reduced? What is essential to make a complete crime, cognizable by human laws?

Why is some overt act necessary, before a man is liable to punishment in any temporal jurisdiction?

What are the three cases in which the will does not join with the act 2

Are there any acts for which an 'infant' is liable between the ages of fourteen and twenty-one ?

What was the ancient Saxon law, and what is the present law, as to ascertaining the capacity of an infant to commit a crime?

Enumerate the offences and their circumstances, for which children of eight, nine, ten, and thirteen years of age, have been sentenced to death, and suffered it.

When is an idiot or lunatic held responsible for his criminal acts? What is the effect of a prisoner charged capitally becoming mad, before arraignment? After having pleaded? After having been found guilty, and before judgment is pronounced? After judgment has been pronounced?

In what light does the law regard drunkenness, with reference to an offence committed by a party under its influence?

What consequence does the law attach to an unlawful act committed by misfortune, or chance?

What is the consequence of an unlawful act committed under ignorance or by mistake?

What is the difference between an unlawful act committed under a mistake of fact, and one committed under a mistake of law?

From what arises the last species of defect of will enumerated by the Commentator?

What principle is illustrated by the case cited of the Sheriff, who, under the orders of Queen Mary, burnt Latimer and Ridley?

Is the coercion of a father, or a master, an excuse for the commission of a crime by a son, or a servant?

When is a wife protected, and when is she not, from punishment for an offence committed in the presence, or under the compulsion of her husband?

How does the law regard crimes and misdemeanors committed under the influence of threats and menaces?

If a man being violently assaulted, have no possible means of saving his life, but by killing an innocent person, would such an act be murder?

On what principle is an Officer of Justice excused for wounding, or even killing, those who would prevent him from arresting a murderer, or other criminal or offender?

Is a man in urgent want of food or clothing, justified, according to the English law, in stealing either?

What was the opinion of Grotius and Puffendorf on this question? of Cicero of King Solomon ?

What does the law of England say upon this point?

Can the King commit an offence against law?

On what principle is this founded?

HIGH TREASON.

TREASON (proditio) in its very name, which is borrowed from the French, imports a betraying, treachery, or breach of faith. It happens, therefore, only between allies, saith the Mirror: for treason is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation; and the inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such superior or lord. This is looked upon as proceeding from the same principle of treachery in private life, as would have urged him who harbours it to have conspired in public against his liege lord and sovereign: and therefore for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary; these, being breaches of the lower allegiance, of private and domestic faith, were formerly denominated petit treasons. But when disloyalty so rears its crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta proditio; being equivalent to the crimen læsæ majestatis of the Romans, as Glanvil denominates it also in our English law.

As this is the highest civil crime, which, considered as a member of the community, any man can possibly commit, it ought, therefore, to be the most precisely ascertained. For if the crime of high treason be indeterminate, this alone, says the president Montesquieu, is sufficient to make any government degenerate into arbitrary power. And yet, by the ancient common law, there was a great latitude left in the breast of the judges, to determine what was treason, or not so whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treasons ;

that is, to raise, by forced and arbitrary constructions, offences into the crime and punishment of treason, which never were suspected to be such. Thus the accroaching, or attempting to exercise, royal power (a very uncertain charge) was in the 21 Edw. III. held to be treason in a knight of Hertfordshire, who forcibly assaulted and detained one of the king's subjects till he had paid him 907.: a crime it must be owned, well deserving of punishment; but which seems to be of a complexion very different from that of treason. Killing the king's father, or brother, or even his messenger, has also fallen under the same denomination. The latter of which is almost as tyrannical a doctrine as that of the imperial constitution of Arcadius and Honorius, which determines that any attempts or designs against the ministers of the prince shall be treason. But, however, to prevent the inconveniences which began to arise in England from this multitude of constructive treasons, the statute 25 Edw. III. c. 2. was made: which defines what offences only for the future should be held to be treason in like manner as the lex Julia majestatis among the Romans, promulged by Augustus Cæsar, comprehended all the ancient laws, that had before been enacted to punish transgressors against the state.

The punishment of high treason in general was anciently solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk: though usually (by connivance, at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torture of being dragged on the ground or pavement. 2. That be be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.*

*This barbarous and frightful mode of punishment has been since altered by the statute 54 Geo. 3, c. 146, which enacts, that persons convicted or adjudged guilty of high treason, shall be drawn upon a hurdle to the place of execution, and be there hanged by the neck until they are dead; and that afterwards, the head shall be severed from the body, and the body be divided into four quarters, to be disposed of as the king shall think fit. But the second section of the statute provides, that after sentence, the king may, by warrant under the sign manual, direct that the offender shall not be drawn to the place of execution, but be taken thither as may be directed; and that he may not be hanged but be beheaded; and in such case, the method of disposing of the body is left to the discretion of the king.

In treasons of every kind the punishment of women was anciently the same, and different from that of men. For, as the decency due to the sex forbids the exposing and publicly mangling their bodies, their sentence, which was to the full as terrible to sensation as the other, was to be drawn to the gallows, and there to be burned alive.*

* But now by the 30 Geo. 3, c. 48, women convicted of treason, or petty treason, shall not be burned to death; but shall be hanged by the neck until dead.

What is Treason?

QUESTIONS.

What were petit Treasons?

Why ought the crime of High Treason to be most precisely ascertained? What is Montesquieu's remark on this subject? What is meant by the expression "constructive treason." What put an end to this species of treason?

What was the ancient punishment of treason, and what is the present one?

How were women guilty of treason, punished formerly-and how now?