CERTAINTY Reluctance. Expences of prosecut.

Midd x. Journal June 25-27 1772

We are informed that the Judges have come to a resolution not to allow the Prosecutors of Indictments any thing for expences, unless they prefer their Bills to the Grand Jury the Day after the commission-day at each Assize-Town, particularly in capital offences.

SUMM. Y PROCEDURE Order x Conviction.

T-29 & 30 G-2 0 Intr - Bishop Reported in Burso Tit. Distress - p. 455 [ed 1772]{An Order is in a Civil matter , a Conviction in

{a Criminal

{Correspondent to an Order is - complaint {— to Conviction - Information

{In a Conviction the Evidence must be set out—

{ It need not in an Order.

{But if the Statute calls it an Order it is an

{order & not a conviction

The case in question was upon the Statute 11

G.2 e . 19) inhibiting persons from assisting Tenants

in the fraudulent removal of on

penalty of double value

The only circumstance that can give color to the

regarding of this as a civil matter is the application

of the forfeiture to the party grieved.

CERTAINTY IMPEDIM TS to Prosecution Expence.

It was in the natural course of things to have removed

subsisting discouragement before they gave new encouragements :

to have smoothed the way for those who

would come into the public service without profit if

they might do it without loss , before they pressed men

into it by the temptation of extraordinary rewards. + + For Burglarers & Highwaymen

CERTAINTY - Imped. ts Reluctance to Prosecute.

Ann. Reg. 1771 19 th Jan y p. 69.

John Comemsis who was committed by the Court

at the last Admiralty Sessions, for Perjury on the

trial of Capt. n Broad, was discharged for want

of Prosecution.

CERTAINTY PARDON.

Ann. Reg. 1771. p. 144. Sept. 24 — Sept - 1.

The Emperor, some days before his departure for Hungary, received

a very extraordinary present from the Pope. It is a large Bottle

of Vulnerary water , which hath the property of instantly

stopping all kinds of bleedings , even those occasioned by a rupture

of the Arteries or large Vessels ; whereof numerous experiments

have been proved the efficacy . A Malefactor, who was

condemned to the Gallows , saved his life at home by

the heart of making it — The Emperor having heard of this

Water , expressed a desire of having a small quantity of it,

which the Pope hath now sent him , together with the

heart. It is much talked of, & will be of inestimable

use in the Armies.

DISPOSAL of ACQUITTED CRIMINALS 2

whenever such a supply is to be procured in by that irregular and

unhappy manner method, there will be one the less wanted for

every one the more than was before. It must be allowed however that in the

case proposed he is taken before that absolute necessity has commenced

A similar course might perhaps be expedient to be taken with persons convicted

of

These reasons [I must confess] have operated convictions in my mind in

favor of a Scheme of this sort; against every thing that can

be said in deprecation of possible injustice. bare Attempts to

some crimes; with this difference that here being some degree of guilt

implicitly proved, they might be sent not into the service at large, but

specially

to some state reputed peculiarly hazardous, as in

Africa or the East-Indies. The honor of the Army Service

which cannot be very scrupulously regarded in the choice of the 1 lower

of it's

the lower

2

members

Rogues could get none to be surety but Receivers; & it seems probable

that Receivers would not be forward to become such on account of the

scrutiny into their way of livelyhood which it would occasion.

But least any thing of this sort should happen & through surety like the

being become a trade, I have proposed as some sort of Check, a power

to be vested in the Jury of disallowing the recognizance.

would be in some measure consulted, by the persons

circumstances respecting then placed in it, of the

interception of their guilt

before it's final consummation.

But of this it belongs rather to the Gentleman dignitaries of that

profession, than to any one else, to judge.

It might also possibly be approved of as a means to prevent

desertion, that such should be marked in some unconspicuous part of their

body (as on their back)

in the manner of the leper stigmatisation. with the date

at which their service is to expire +

+ But this must be in

words at length not in figures; by reason of the case with

which these last might be falsified

After all there may be danger with regard to the extending of the provision here

proposed to this latter class, least the punishment for the attempt being

regarded by some as greater that that annexed to the crime when

consummated, might frustrate the design of making a difference

between

in favor

of the

attempt

former and serve as

as a motive - for instead if against the pushing on to

accomplishment a criminal enterprize begun.

Particular modifications on this kind

would be requisite

upon new model for Juries proposed in III Ms 35 & c.

By way of remedy to this, it might be left to the option of the Criminal

to submitt

either to this obligation, the term

proposed for its continuance being declared to him, or to the

punishment specifically allotted to his offence.

which is

extent of

Or it might be an instruction to them not to

impose it without the alternative except where in such

case they should be satisfied there was no room for [a repentance]

an alteration of Will to intervene between

the attempt & the consummation.

N.B. Observe there is always an Oath against them which obviates abuse. If

the proposal be not admitted absolutely and universally, it might be admitted

under these restrictions 1 st That

the culprit be unmarried: 2 nd That

he be under age: 3 rd That it be his 2 nd

Trial.

[+] [+] It may be of use to call to instead

a few of the examples that may serve [which

the fugitive histories of these transactions, as far as they may be defended

or affords in confirmation]to swear of

their of this proposal. One must be content to take them from

Newspapers and compilations from Newspapers till it be thought

expedient to take measures for giving some higher degree of

authenticity to a body of experience of such Importance to the instruction

of the Legislator.

Qv Annual Register 1771. Sept.18 p.141 A young Fellow was tried at the Old Bailey

for Felony & acquitted at 12 o'clock: at

2 he was detected in picking a Gentleman's pocket in Catherine

Street, carried before Fielding & before

3 found himself again safely lodged in Newgate

132. Matthew Polland who was executed at Tyburn Aug. 1771, tho' but 18

years of age, had been 5

evidence at the Old Bailey.

PROCEDURE Disposal of acquitted Criminals 2

NOTORIETY. New Year-Books v. the Titler Police in the Oxford Mag for June 1771 for remarks on the inaccuracy of the Sessions Papers

1

If a contributor of Notes should think himself injured, by the manner in which any of

his case notes is published, he should have the liberty of printing that case to make good

his complaint: but the authenticated report should still be the only one permitted to be

cited. If the unauthenticated accounts of our the own legal transactions of our own tribunal are forbidden to be cited, much more ought those of foreign [tribunals:] still more extrajudicial opinions of foreign writers a prohibition measure that would be as popular as salutary.

2.

The Reports should be printed in pocket volumes and a small point —

1 st for the sake of portability. 2 d to lighten the expence of such an additional influx

of books all equally necessary to be purchased.

3.

The Revolution, perhaps even a nearer epoch, might be taken for date of

their commencement. No cases unpublished prior to that period at least, are known or circulated

in the profession. The efficacy of a decision is either direct or collateral in producing certainty more regards 1 st the very point in dispute 2 d others that bear an analogy to it. If such an one antique case should be brought out now for

the first time it's collateral influence would either be in concurrence with the

influence of those which are known and circulated, or in opposition to it. If in concurrence

the certainty that can be produced, is produced without it, and it is superfluous. The influence of a decision is either Direct only Collateral as well as direct

If in opposition, it would shakes the certainty that there is already by it's reception being received

while, since by the supposition it has never been consider'd as subsisting,

nor therefore as binding, it would not shake it by it's being rejected. rejection

If it be such as to have has no other than a direct influence, (of which sort there must needs be very

few if any) the point may as well be reserved to receive it's decision in an improved state

of Jurisprudence, as governed by that put incognito in under a rude one.

4.

The time from which publication should commence being fixed, the next Questions

are 1 st whether it's course should be marked out by the subject, or by time. Then 2 dly If by

time whether in it's the natural or inverted order.

As to the 1 st Question, It should seem that a few compact and insulated

subjects might be first selected, the publication doctrine relative to which might be compleated

at once through the whole extent of Time. + + But this would hardly be worth while if the whole should be compleated as it should seem it might be in 4 or 5 years except as to Criminal Law which might be done forthwith. Of this kind is the Title of

Criminal Law (or Pleas of the Crown as the name Phrase is) the whole number of unpublished

cases relative to which (by reason of its comparative simplicity how great soever it's extent) could hardly do more than fill a moderate volume in 12. vo

5

But these subjects must be so obviously distinct from all others, that contributors may

know without difficulty whether their cases are or are not applicable: otherwise,

PROMULG. New Year-Books. Plan for [BR][1][ ]

POPERY. Toleration.

1

Double Taxes continued

.2.

Courier du Bas Rhin 24 Nov. r 1773 N o 98 hr 75 ....S.A.R. le Prince de Prusse ainsi que L.A.S. le Prince Frederic Auguste de Brunswic, & le Prince hereditaire de Hesse Darmstadt, est bien voulu assister a la ceremonie de la dedication &au service done of a R. Catholic Church lately finished at Berlin under the protection of the K. of Prussia

All other restraints and impositions to be taken off except as follows

3

Mass-Houses to be register'd with the name of the Priest or Priests

4

Names of the congregation of each Mass-Houses to be register'd likewise

To prevent making converts

5.

The Mass-House to be shut up on conviction where the Sacrament at the Mass is administer'd to any

Person not of the congregation: unless that person belong to some other congregation: the proof of which to lie on the Priest. But provide for the case of non Parishioner or foreigner — He might take out a license on landing — signed by some Officer of the Port, with day of the month year &c But then Qu. how to distinguish those that are able to pay & those that are not as Poor Instc. Haymakers &c.

6.

The same penalty for administering the Sacrament of Baptism to any person

one of whose parents is not of some Congregation.

7.

The same for administering any of their other Sacraments.

To range them the Priests under the influence of Government—

8.

— NotedStipend to be to be conferred by the Crown — levied upon that Congregation.

9.

A Proper Oath of Allegiance to be framed for them.

10.

Those who will take the Oath who are to be register'd to be allowed to have Arms and Horses of price others not.

11.

(An Oath might perhaps be framed, to which the Pope would be willing to give them a Bull permitting them to take.

authorise their taking

12.

Any two Justices to be impower'd to tender the Declaration against Transubstantiation & the Oath of Allegiance, & upon their refusing both of them to imprint in indelible characters on their forehead, the Sign of the Cross of in determinate dimensions.

12.

It should seem, that a milder and at the same time more effectual expedient cannot be adopted, than this for securing against their machinations, by rendering them everywhere distinguishable & known.

13.

Should there be any such, they would hardly deem it a reproach or hardship in lieu of all the hardship & distress to which they are at present exposed to be obliged to bear a

symbol for which they profess so profound a veneration.

14

I propose this, not as thinking it necessary myself, but to quiet the minds of those Protestants whose apprehensions of danger from that Sect are stronger than my own.

POPERY [BR][.I.]

POPERY. Advantages of TOLERATION. Ledger for 29 May 1772 - Irish

debates.

24 th

1 st We should ourselves superintend their education,

instead of sending them to

it superintended Not superintend over of our enemies.

25

2. All the Sums which are sent out for that purpose, which certainly are not

small would circulate at home.

26

3. We should by this means have the opportunity of with their studies;

such books as, tho' they do not strike considerably against

their superstitions; & therefore would

not be refuted, since they are

permitted even in countries where these

superstitions would not fail universally to undermine them, in

consequence of their tendency to

the mind. Such for instance are Locke's Essay and treatise on Government. +

+Que. whether this is permitted

27

4. By having their

Bibal

plans of Divine Service under our inspection, without depriving

them of any of their essential furnctions, we

might yet keep their love of these gaudy trappings &

, which attached the eye, & have operated

towards the provision of mind & warm

imaginations more powerfully than arguments. when arguments would not have

shaken.

28

Every expedient by which their interest to be quiet is

augmented, while their impotence is either kept

hid or if possible , is an additional security.

29

On these principles was it judged (and

judged) by this aristocrat of

State

Peace; As

even our enemies — How much stronger is

the reason

for devilry as by our

watcher friends & fellow citizens.

30

I would pray beseech those to consider, who entertain so high a notion

of the

of religious influence the influence of their

superstition in depretiation of that of the amor

patriae

cantos

omnium cavitatis complectitur,

who were the men to whom we owe the foundation and as well

as the transmission for so many ages of the liberties we now enjoy?

Were they not Catholics — Catholics ignorant and

barbarous; when the rough spirit of the superstition was as yet

untinctured with that politeness which has

soften'd it & more even when it is

dominant & uncontrouled.

31

An incident related by an ingenious French Traveller is so

applicable to this subject that cannot resist the

propensity to transcribe it. +

32.

If then the affection attachment to the mother Country has can

have such mighty power at the dedication of

near a Century against in

preserving itself alone in spite of Persecution of the most cruel kind

not

only but inflicted in heading ever to a

Land of Dispation.

[Br.][3]

COINING

This masterly regulation + + An instance of indirect Legislation adopted for the sake of suppressing the evil more effectually and really [not at less expense as in some other instance of indir. Legisl n] has fallen under the displeasure of a later writer, [which he has] visiting its

in that sort of laconic aphorism an aphorism of that laconic sort turn which announces self-evidence finds an expect in the such -most

it expresses which it conveys "Of the equal property says he might it be adjudged Homicide to be in

possession of a Pistol." The two cases would be parallel, were it that true which is not

Homicide not properly deleterious

so, that Pistols are kept for the purposes of offence alone - The fact is that as every body kn for

one kept for those purposes, there are a hundred kept for that of safeguard.

Ask And the Gunsmiths of whom there are so many is such a number in this Metropolis, which must be

very much surprized at learning their customers are all Murderers & Robbers. The condition to which the circumstance

is annexed is, the instruments being proper for that use only alone for if they are good indent for

any thing else, the possessor will not suffer under the Act - & and if they are fit for nothing

else what should he do with them unless it is that?

The condition to interwoven in the clause description of the offence, is a

compleat guard. Except that the seizer is not sufficiently protected by the letter of the Law - for "in his possession" they may be found.

how this should The moment that it is defined

it is as just as clear, that he intended to make that use of them, as if he were

seen finds so doing so. + + And it is just as much more probable that he had

activally used them than that he had not, as the time which a man may live beyond above manhood is greater that the

least time which it would take to

dispose the apparatus in order for working. [Just as it would be equally clear that a man intended to

supposing by his keeping poison in his home it were clearer he did not do it with a idea to experiment, but it were

simply deleterious & of no use & were of such a nature as to be fatal to Mankind alone]

Ann. Register. 1771. p.108

May 13. A Grocer in this City (London]was committed to the Poultry Compter, for giving a Customer a bad half Guinea in change, and refusing to exchange it for a good one.

The ingenuous Author of the Principles of Penal Law + + p.128 with becoming liberality of sentiment spirit exposed the preposterous confusion of Justice and of Language - I am but the echo of his sentiments when &c —

This System of Offices having been used as an example under two several heads of the preceding Book (since to make facilitate the understanding of the several observations deliver'd in them some example needed to be taken, much remains not to be said of it in this its proper place.

FORGERY Indirect Legislation [BR][3]

FORGERY. Indirect Legislation

20

The above expedients will afford a sufficient security against the total obliteration of

the contents of an Instrument in order to make the paper a groundwork for a false one; which otherwise

might be very possible; since the steeping it all over, supposing the letters could be entirely discharged by that method varying it's appearance uniformly

would give it the appearance of being damped accidentally by weather: Instance of erasure by solvents in 1 Str. 18.

21

Forgery — License to prevent smuggling.

Partial obliteration is in a manoeuvre impracticable to be performed without detection where

there is suspicion; on account of the dissimilitude of the vitiated part with the general

which such a manoeuvre would necessarily produce, when the whole is not under

command: if the matter was not thoroughly steeped & sponged off along with

solvent, a infusion of Galls would bringing it in again, + + probably of this experi. more or less strongly, as in

sionly as the dexterity of the vitiating manipulations.

22

If a little Prussian Blue were mixed up with the Ink (the Blue used before it is made into into cakes and whole it is yet more easily diffusible through water than it is afterwards) this would could not be discharged by an acid but would be enlivened: and the least discolourment imaginable upon the white paper is sufficiently visible. For this purpose the Blue need not be brighten'd by an Acid as is done when it is manufactured and this will leave the quantity greater than it is after the latter process, and will much diminish the expence. As the Blue will still be the dearest ingredient in the mixture, a penalty must be inflicted on the diminishing it's proportion. Gum may be used in the water the better to suspend it — but its integrant parts are so very small, that by reason of the resistance of the water it sinks very in that state. I have some, part of which has remained suspended without shaking for months.

Obj. A Scheme apparently so well calculated to prevent deceit, will lull men into security.

Deceptions being less suspected will pass the easier. This is mentioned not as conclusive,

but as fit to be consider'd.

23

Ann. Register. for 1771, p. 143.

Sept. 4. At the Trial of Martin and Birch for the Forgery of a Will purporting to be

that of S r And. Chadwick.

"A wholesale Paper-maker who was very instrumental in convicting the above men,"

"swore by the stamp or mark that was upon the Paper, that he made the said Papers in"

"1768 4 years after the will was dated, which circumstance had great weight with"

"the Court"

24.

And advantage of a plan of this sort, is that all the difficulties attending the kind of

imposition in question, are made apparent. This prevents crimes in the strict sense of the word by anticipation, instead

of waiting for examples to prevent them by punishment.

foeber

7

SUICIDE Qui rationae Ut regnum alicana

ca sue ipse facit.

How is it proved that for it to be lawful for a State to take

away life [ for ] ? Because it saves unhappiness

& nay a man then an to his own life when it

becomes a to him? Yes, for the same reason, because

it saves unhappiness

LIBELS London Event Jan. y 4 - 7 . 1772

When the Printers were last Winter ordered to attend the House of Commons for printing

the speeches of the Members, it appeared on the examination of one of

the Messengers that Mr. W. Woodfall was then in custody of the Black Rod

of the H. of Lords. This occasioned Mr. Joseph Mawby to declare that he considered the proceedings of the H. of Lords in the case of Printers to be most arbitary and tyrannical: he instanced two cases in support of his opinion of one of the Printers (having inserted the following paragraph in a daily Paper. "We hear the Scullian is a of France will send over a Company of his Guns & Armis to protect his good friend and ally that D of ....... The other are extract of from an Letter from Paris, which runs thus: "Though the Earl of Hartford is Minister at this Court, the affairs of Gr. Britain are managed by Mr. David Hume, a ? Mr. Grant reads as well as he is able and the Liturgy of the Church of England every Sunday in the Ambassador's Chapel. For these publications he said, the Printers were ordered to pay

False Pretences

Is the obtaining of valuables with consent given an implied condition of

making return or compensation by one not

intending at the time to make either return or compensation

In this Crime

Man's Vanity is in some a to these alarms.

PERJURY Definition - confined to oaths assertive.

The names appellation

of oaths might be confined to oaths apertory.

for Oaths promissory might be apropriated

by the name of Vows .m

Perjury is the wilfull & knowing utterance

of a false oath materially

a point to which one is called

to testify by designation of Law.

DEFANCATION WORDS

Cr. J. 687 Thou art as arrant a

as any is in England: for though has broken up

Chest, away 40£ Judgment arrested, because

not It is not said whether by Dif n

in the words by the Def in declaring. that there was any

in England. & the last words impart not Felony.