« VorigeDoorgaan »
was of course made to the appellant; and hence it is, that goods omitted in an appeal, are regarded as forfeited to the
But the statute of 21 Hen. VIII. cap. xi. introduced a new law, for the restitution of stolen goods,-ordaining, “ That if any person do rob or take away the goods of any “ of the King's fubjects within the realm, and be indicted, " and found guilty by the evidence of the party so robbed,
or owner of the goods, or by the evidence of any other “ by their procurement, then the party, robbed shall be re“ stored to his money, or goods, and the Justices before “ whom the felon is found guilty, shall have power to award « writs of restitution, in like manner as though the felon was o attainted at the suit of the party in an appeal.”
« For before this statute there was no restitution upon an indictment, but only upon an appeal. • Restitution by course of law, is either by taking the goods stolen, or by action. As to retaking them; if A "Iteals the goods of B and B takes his goods again, with o intent to favour the thief, this is punishable by fine and im• prisonment; but if he takes them without such intent, the s taking is juftifiable.
• The party robbed may also proceed by action, for the recovery of his money or goods, if he hath prosecuted the • law against the offender. For example, if A steals the
goods of B, viz. 501. in money, and is convicted, and hath his clergy upon the prosecution of B; and B afterwards brings a trover and conversion for this 50l. and, upon not
guilty pleaded, the special matter is found, reftitution will • be adjudged to the Plaintiff, who hath already done his
duty in prosecuting the law against the robber, so that the commonwealth can receive no injury; but it hath been held, that if a man feloniously steals goods, and before prosecution by indictment, the party robbed brings an action of trover, it will not lie; for, by such a practice, felo
nies might be compounded. Hale's Hift. of the Pleas of < the Crown, p. 546.” Tit. iii. fect. 2. And, therefore, he is not subject to the law,
who kills a robber, or an asasin, if there was no other way of avoiding the danger threatened. • It is now provided,' says Mr. Harris, ' by 24 Hen. VIII. chap. x. “ that if any person is indicted, or appealed for the « death of any evil disposed persons attempting to murder, s rob, or break manfion-houses, the person fo indicted or
« appealed, and by verdict so found, shall not forfeit any “ lands or goods, but shall be thereof acquitted, in like man
ner as if he bad been acquitted of the death of the said evil“ disposed persons”.
But this statute extends not to indemnify the killing a felon, when the felony is not accompanied with force; for ' it speaks of robbery; therefore the killing a man who only
attempts to pick a pocket, is not within the act; because, • there can, in such a case, be no necessity to kill. Hale's • Hift. of the Pleas of the Crown, vol. I. p. 488. Tit. iv. sect. 1. It is also manifest, that an injury may be committed by writing a defamatory libel, poem, or history, &c.
The Note here. A libel, according to the definitions given of it in the Law of England, is a malicious defamation, expressed either in words or writing, or by signs, pictures, &c. tending either to blacken the memory of one who is dead, or the
reputation of one who is living. 5 Co. rep. de Libellis fa« mofis, p. 125:
• In England the punishment may be by fine, pillory, or < whipping, when the offender is proceeded against by indict& ment, or information ; but in a civil action, the punish
ment sounds only in costs and damages. But as to mere swords of defamation, they are at common law 'not action
able, except when they have been of real damage and inju
ry to the person spoken against ; for mere contumely of 6 but little consideration; and the ecclesiastical courts
be • prohibited, by the temporal courts, from proceeding in a
cause of defamation, when the suit is not wholly of a fpi
ritual nature: as for calling a man a heretic, schismatic, 6 adulterer, fornicator, &c. 4 Co. rep. p. 20. PALMER V. 6 THORPE. Tit. v. sect. 3. The master of a ship, tavern, or inn, is liable
to be sued for a quasi-male feazance, on account of every damage, or theft, done or committed in any of these places, by himself or his servants, &c.
NOTE. By the law of England an inn-keeper shall be charged, <if there is any default in him or his servants, in keeping < the goods of a guest; for an innholder is bound by law, to < keep them fafe; and it is no excuse to say, that he delivered o the guest the key of the chamber-door, and that the guest
And altho' the guest does not deliver his goods to the innholder to keep, yet, if they are stolen, even by • persons unknown, the innholder is chargeable ; for, in this Review, July 1756.
« left it open.
• case, either the innholder, or his fervants, are in fault for
their neglect. 8 Rep. 32. Calye's case.' Tit. vi. sect. 21. All actions are for the single, double, triple,
or quadruple value of the thing in litigation ; for no action tends farther.
Here the Note is. « On some actions, nothing more is given by the law of « England, than the bare damages sustained; as in actions of « trespass ;—but double and triple damages are given in many
cases ; and even tenfold damages are recoverable against a • juror who receives a bribe for bringing a verdict. 38 • Edw. III. cap. xii. Cowel, h. l.'
Here we may end our Review of Mr. Harris's Translation and Notes upon the Institutions of Justinian ; a work peculiarly adapted for the improvement of the young Student in Law, for whose service it seems principally to have been intended; but worthy also the perusal of every Gentleman, who would form a just notion of the civil policy of the Romans, and obtain, at the fame time, a comparative view of
A Vindication of Natural Society: or, a View of the Miseries
and Evils arising to Mankind from every Species of Artificial Society. In a Letter to Lord ***** By a late Noble Writer. 8vo. Is. 6d. Cooper.
THE pamphlet intitled as above, and containing one
hundred and fix pages, is introduced by this Advertisement.
• The following Letter appears to have been writen about the year 1748, and the person to whom it is addressed, need ' not be pointed out. As it is probable the noble Writer chad no design that it should ever appear in public, this will
account for his having kept no copy of it, and consequent
ly for its not appearing among the rest of his works. By * what means it came into the hands of the editor, is not at • all material to the public, any further than as such an ac
count might tend to authenticate the genuineness of it; and < for this it was thought it might safely rely on its own inter(nal evidence.'
The Author's apparent design is to excite, in his readers, an abhorrence of all kinds of civil government and politic
institutions. He maintains, in a very animated and declamatory manner, that civil associations among mankind, are formed and entered into merely to effect the mutual destruction of each other; that men naturally hate one another, for belonging to separate societies; that every where the politician is a character odious and detestable; that all governments must frequently infringe the rules of justice, to support themselves s that they are a violation upon nature; and that even when best administered, they must have recourse to fanguinary measures; that governments, or artificial societies, reduce men into three classes, the poor, the powerful, and the rich; that by them the poor are enslaved, insulted, and oppressed; the powerful tormented with internal anguilh, through never ceasing avarice, ambition, fear, and jealousy; and the rich rendered miserable through a weak valetudinary state of body, and through pains and diseases too severely felt, tho' brought upon them by luxurious pleasures scarcely felt at all. These are the general observations, disposed in different parts of the Letter, and expatiated upon with much seeming sincerity and warmth. But the topics which principally employ the pretended zeal and ardour of this Writer, and which glow and dazzle through most of his pages, are; ift. The Naughter and destruction inflicted upon mankind by war; 2dly, the oppressive nature of government, whether Despotic, Aristocratical, Democratical, or mixed ; and, 3dly, the chicanery and delay of Law. War is described, not as the acci. dental, but as the necessary consequence of embracing civil life. And thoʻthe Letter-Writer, in his retirement, seems to have had no other historical book in his poffeffion, except Justin, yet he makes shift to run over the warlike atchievements of mankind from the days of Sefoftris, King of Egypt, in a continued detail, down to the times inclusive of the Goths and Vandals. He marks the extent of the carnage, and calculates the numbers of the flain. This takes up about twenty pages. By his computaion the total of those murdered in the field, within the period he confines himself to, amounts .to forty millions. The total therefore of those killed in battle, from the beginning of the world to the time in which he wrote, viz, about the year 1748, he supposes may modestly be put at a thousand times as much, that is, at forty thousand millions, and, to this, adding the havock, calamity, and destruction attending war, to wit, famine, disease, pestilence, and massacres in cold blood, he thinks he may fairly double the last total, and place to the account of civil policy, the flaughter and extirpation of eighty thousand millions. And
as the number of men existing at a time upon the earth never exceeds five hundred millions, the political flaughter of marre kind must, he observes, even upon this scanty calculation, equal, at least, a hundred and fixty times the number of souls this day on the globe. In declaiming against the several forms of government, he employs forty pages. These afford us much more entertainment than the former, because they are not only lively, but instructive. The severity and rigour of Despotism, the inflexible artifice of Aristocratical oppression, the confusion, giddiness, and madness of Democracy, and the Aaws of mixed Monarchy, particularly of our own, are strongly and sensibly exposed; and we meet with some particulars concerning Denmark, Poland, Venice, Athens, Sparta, and Rome, that are interesting, curious, and well adapted to the subject. The invective against Law, abounds also in just satire, and is the more acceptable, because, in many respects, it strikes entirely home at abuses or defaults of that kind among ourselves. This is comprised in about eleven pages. If we except what he advances upon the first of these three topics, his premiffes are generally true; but the consequence he draws from them, obvioufly false : so that were this Writer in earnest, in reasoning as he does, he could contribute but very little to the spread of error; so conspicuous would his defect of judgment be, amidst all his knowlege and vivacity. But this Writer is really guiltless of the absurd attempt
of inspiring into the breasts of men an aversion to society, and a deteftation of government. All we can think he aims at, is, to to make his readers imagine, that a late noble Writer is the author of this piece; and that the late noble Writer was as wild, extravagant, and whimsical in his politics, as in his religious meditations; or, at least, that his manner of reasoning on religious subjects, would, when applied to any other subject, particularly to politics, appear plainly to be vain, unsatisfactory, and ridiculous. We commend, and highly approve of, every generous effort in favour of Truth; and had this gentleman, instead of pretending himself to be a certain deceased Lord, whose manner, in fome degree, he has alfumed, and for whom he would pass, by an appeal to what he calls the internal evidence of the Letter itself, been so candid as to own, that he only wrote in the manner of the late Noble Writer, there had remained nothing more for us to do, than to have informed the public, of the nature of the performance; and to have applauded the Writer for his good intentions.