upon, with the witnesses' depositions adduced, for proving thereof; with the witnesses' depositions adduced for the pannel's exculpation: They, by plurality of voices, find the pannel Not Guilty. In witness whereof thir presents are subscribed by our said chancellor and clerk, in our names, place, day, month and year of God above-written.

"RO. DICKSON, Chancellor, "GEO. HALIBURTON, Clerk." The Lords Justice-Clerk and Commissioners of Justiciary, having considered the foregoing Verdict of Assize returned against James Carnegie, of Finhaven, pannel: They assvilzied, and hereby assoilzie him simpliciter, and dismissed, and hereby dismiss him from the bar.

AD. COCKBURne.

ABSTRACT OF SOME ACTS OF PARLIAMENT, IN THE VERY Words of the STATUTES THEMSELVES, REFERRED ΤΟ IN THE FOREGOING ARGUMENTS.

James 1, parl. 3, act 51, intitled, "Of forethought Felony and chaud mella ;" statutes, "That as soon as any complaint is made to justices, sheriffs, baillies, &c. they shall enquire diligently (i. e.) without onie favour, gif the deed was done upon forethought felony, or throw sudden chaud mella: and gif it be found forethought felony-the life and goods of the trespasser to be in the king's will: and gif the trespass be done of sudden chaud mella, the party skaithed shall follow, and the party transgressor defend, after the course of the old laws of the realm."

James 1, parl. 6, act 95, intitled, "The Manslayer suld be pursued until he be put furth of the Realm, or brought again to the Place of the Slauchter;" (the act appointing the method of pursuing manslayers) statutes, "That quhairever he happenis to be takin, that schireffe, stuart, or bailie of the regality, sall send him to the schireffe of the nixt schireffdom, the qubilk sall receive him, and send him to the nixt schireffe, and swafoorth from schireffe to schireffe, quhill be be put to the schireffe of the schire where the deede was done, and there sall the law be ministred to the party: and gif it be forethought felony, he sall die therefore."

James 1, parl. 6, act 95, intitled, "Of Inquisition of forethought Felony to be taken by an Assize;" it statutes, "That the officiars (i. e. the judges ordinary) shall give them the knowledge of an assize, whether it be forethought felony, or suddenly done: and gif it be suddenly done, demain them as the law treats of before:-and gif it be forethought felony, demain them as law will."

nowe of late, baith of forethought felony, and of suddantie: and because monie persons commit slauchter upon forethought felony, in truste they sall be defended throw the immunitie of the halie kirk and girth, and passis and remainis in sanctuaries; it is thought expedient in this present parliament for the stanching of the said slauchters in time coming, quhairever slauchter is committed on forethought felony, and the committer of the said slauchter passis and puttis him in girth, for the saftie of his person, the schireffe sall come to the ordinar, and in places exempt to the lords maisters of in places quhair he lies under his jurisdiction, the girth, and let them wit, that sick a man has committed sick a crime, on forethought felony, "tanquam insidiator et per industriam," for quhilk the law grants not, nor leaves not sick persons to joyis the immunities of the kirk. And the schireffe sall require the ordinar to let a knowledge be taken be an assize on 15 days, quhidder it be forethought felony, or not; and if it be founden forethought felony, to be punished after the king's laws; and if it the freedome and immunity of halie kirk and be founden suddantie, to be restorid again to girth.”

James 4, parl. 3, act 28, intitled, " Anent Manslayers taken or fugitive; "statutes, "That where any happens to be slain within the realm, the manslayer shall be pursued (in a certain manner), and wherever he happens to be overtane, that the schireffe sall incontinent send him to the nixt schireffe, and so furth, quhill he be put to the schireffe of the schire quhair the deed was done; and there sall justice be incontinent done. And gif it be forethought felony, to die therefore."

James 5, parl. 4, act 23, intitled, “The Maisters of the Girth suld make deputes, quha suld deliver Malefactures, that may not bruik the priviledge thereof;" statutes, That they should be holden in all time comeing, to deliver all committers of slauchter upon fore. thought felony, that flies to girth, and others trespassers that breaks the same, and may not bruik the priviledge thereof, conform to the common law and the act of parliament made thereupon of before, to the king's officiars, askand and desireand them to underly the law." Follows the intire act of Charles 2, pari. 1,

chap. 22, intitled, "Concerning the several Degrees of casual Homicide." sent of the estates of this present partiament, "Our sovereign lord, with advice and con. for removing of all question and doubt that may arise hereafter in criminal pursuits for slaughhomicide after following, viz. casual homicide, ter; statutes and ordains, That the cases of homicide in lawful defence, and homicide committed upon thieves and robbers breaking

the time of masterful depredation, or in the pursuit of denounced or declared rebels for capital crimes, or of such who assist and defend the

Mich. Term. 1 Geo. 2.

DOMINUS REX O. EDMUND CURLL.+ INFORMATION exhibited by the Attorney General against the Defendant, Edmund Curll, for that he "existens homo iniquus et sceleratus, ac nequiter machinans et intendens bonos mores subditorum hujus regni corrumpere et eos ad nequitiam inducere, quendam turpem, iniquum et obscænum libellum, intitulat Venus in a Cloyster, or, The Nun in her Smock, impie et nequiter impressit et publicavit, ac imprimi et publicari causavit," (setting forth the several lewd passages) "in malum exemplum," &c. and of this the defendant was found guilty.

And in Trinity Term last, it was moved in arrest of judgment by Mr. Marsh, that however the defendant may be punishable for this in the Spiritual Court as an offence" contra bonos mores," yet it cannot be a libel for which he is punishable in the Temporal Court. Libellus is a diminutive of the word liber, and it is li. bellus from its being a book, and not from the matter of its contents. In the Case De Libellis famosis, my lord Coke says, that it must be against the public, or some private person, to be a libel, and I do not remember ever to have heard this opinion contradicted. Whatever tends to corrupt the morals of the people, ought to be censured in the Spiritual Court, to which properly all such causes belong. What their proceedings are I am a stranger to: But for me it is sufficient to say, I do not find any case, wherein they were ever prohibited in such a cause. In the reign of king Charles 2, there

* Probably the notorious bookseller. As to whom, see the Dunciad. See, also, vol. 15, p. 396.

+ Strange's Reports, vol, 2, p. 738. See 1 Baru. 29. See Annett's Case, 1 Blackst. 395, Burn's Ecclesiastical Law, tit. Profaneness, Eunomus Dialogue 3, p. 112. See, also, East's Pleas of the Crown, c. 1, § 1, and Wilkes's Case for publishing the Essay on Woman.

was a filthy run of obscene writings, for which we meet with no prosecution in the Temporal Courts; and since these were things not fit to

go unpunished, it is to be supposed that my lords the bishops animadverted upon them in their courts. In the case of the Queen v. Read, 6 Ann. B. R. there was an information for a libel in writing an obscene book, called, The Fifteen Plagues of a Maidenhead; and after conviction, it was moved in arrest of judgment, that this was not punishable in the Temporal Courts; and the opinion of chief justice Holt was so strong with the objection, that the prosecutor never thought fit to stir it again.

Attorney General contra. I do not observe it is pretended there is any other way of punishing the defendant: for if the Spiritual Court had done it, instances might be given; and it is no argument to say, we meet with no prohibitions: such a way of argument would construe them into all sorts of jurisdictions. What I insist upon is, that this is an offence at common law, as it tends to corrupt the morals of the king's subjects, and is against the peace of the king. Peace includes good order and government, and that peace may be broken in many instances without an actual force. 1. If it be an act against the constitution or civil govern. ment. 2. If it be against religion. And, 3. If against morality.

1. Under the first head, fall all the cases of seditious words or writings, 2 Roll. Abr. pl. 2; Vent. 324; 3 Keble 841, and the Case of the Queen ». Bedford, Mich. 12 Ann. whose treatise of Hereditary Right was held to be a libel, though it contained no reflection upon any part of the government.

2. It is a libel, if it reflects upon religion, that great basis of civil government and liberty; and it may be both a spiritual and temporal offence, Cro. Jac. 421; 2 Roll. Abr. 78, pl. 2; 1 Vent. 293. 3 Keble 607, 621. In Tremayne's Entries, 226, there is a sentence to have a paper fixed upon the defendant's head, intimating, that be had uttered blasphemous words, tending to the subversion of government.

always to be taken as a technical word; in this case it may stand as an obscene little book. And as to the case of Read,* there was no judgment, but it went off upon the chief justice's

the records of Scotland, bear ample testimony to the prevalence of practices of this sort in that kingdom, during the reigns of Charles the 2d, and James the 2d.

By stat. 21 Jac. cap. 3, it is declared and enacted, That all commissions, grants, &c. theretofore made or granted, of any grant or promise of the benefit, profit or commodity, of any forfeiture, penalty or sum of money, that is or shall be due by any statute before judgment thereupon had, are altogether contrary to the laws of this realm, in no wise to be put in execution. What was said by the judges in the case of penal statutes (Hil. 2 Jac. 7 Co. Rep.) will readily be believed; that in their experience such grants made the more violent and undue proceeding against the subject, to the scandal of justice, and offence of many. "Therefore,' says lord Coke (3 Inst. 187,)' such beggars are offenders worthy of severe punishment:' and to "these hunters for blood" he applies the exclamation of Micah, "They all lie in wait for blood, and every man hunteth his brother to death." [Our translation says, with a Det.]

In the case of the Queen against Read, 11 Mod. 142, it was held that a crime that shakes religion (see 1 Hawk. ch. 5,) as profaneness on the stage, [as to this, see stat. 3 Jac. 1, c. 21, &c. is indictable; but writing an obscene book is not indictable; but punishable only in the Spiritual court.

This case of the Queen v. Read (Fortesc. 98,) was an indictment for printing a lascivious and obscene libel, entitled, "The Fifteen Plagues of a Maidenhead." The defendant was tried before lord chief justice Holt, and convicted; and upon motion in arrest of judgment, it appears, that judgment was given by the whole court for the defendant. And by Holt, C. J. "There are ecclesiastical courts: why may not this be punished there? If we have no precedent we cannot punish. Shew me any precedent." Powell, J. "This is for printing bawdy stuff, that reflects on no person and a libel must be against some particular person or persons, or against the government. It is stuff not fit to be mentioned publicly. If there is no remedy in the Spiritual court, it does not follow there must be a remedy here. There is no law to punish it I wish there were; but we cannot make law. It indeed tends to the corruption of good manners, but that is not sufficient for us to punish. As to the case of sir Charles Sedley, there was something more in that case than shewing his naked body in the balcony; for that case was quod vi et armis he pissed down upon the people's heads." And he cited lady Purbeck's case, which was in the Star-chamber, where they "quashed the indictment because it was for matters of bawdry." Holt.

Lord Fortescue, at the end of his Report, mentions this case of the King and Curll, "which" he says 66 was an indictment for printing and publishing a libel, called, The Nun in her Smock; which contained several bawdy expressions, but did contain no libel against any person whatsoever: the Court gave Judgment against the defendant, but contrary indeed, I thought it rather to be published, on to my opinion; and I quoted this case. ther confessors, and Popish religion." purpose to expose the Romish priests, the fa

And,

But since this case of the King v. Curll, the Court of King's-bench without hesitation exercises jurisdiction over such publications, and over other offences contra bonos mores, which are not attended with breach of the peace.

Upon an attempt (2 Geo. 2,) to move in are rest of judgment in the case of Woolston, who was convicted on four informations, for his blasphemous discourses on the miracles of our Saviour, the Court declared they would not suffer it to be debated, whether to write against Christianity in general, was not an offence punishable in the Temporal courts at common law: it having been settled so to be, in Taylor's the case of the King v. Hall (see 1 Str. 416, [419, case, 1 Vent. 298; 3 Keb. 607, 621; and in taken notice of, that they laid their stress upon ed. of 1781-2.]), They desired it might be the word general,' and did not intend to include disputes between learned men, upon particular controverted points. 2 Str. 834, [820 ed. of 1781-2.]

In the case of the King against sir Francis Blake Delaval, and others, which was a prosecution for a conspiracy to transfer a female infant apprentice for the purpose of prostitution, lord Mansfield said: "I remember a cause in the Court of Chancery, wherein it appeared, that a man had formerly [qu. formally] assigned his wife over to another man: and lord Hardwicke directed a prosecution for that transaction, as being notoriously and grossly against public decency and good manners. And so is the present case. It is true, that many of fences of the incontinent kind fall properly under the jurisdiction of the ecclesiastical court, and are appropriated to it. But if you except those appropriated cases, this court [B. R.] is the custos morum of the people, and has the superintendency of offences contra bonos mores: and upon this ground both sir Charles Sedley and Curll, who had been guilty of offences against good manners, were prosecuted here.”