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long time his gracious majesty hath premised before he would bring them to their arraignment.

*Unto all great mischiefs there be ever three inseparable incidents: the first is imitation; the second, supportation; the third is defence; within these three fall all Sir Walter Raleigh's treasons; for his is the treason of the main, the others were the bye, &c.

Your lordships will see that all these treasons, though they consisted of several points, closed in together, like Samson's foxes, which were joined in the tails, though their heads were severed. But the Lord Grey went further than the bye; for at the king's removal from Greenwich, at Midsummer, he and a hundred gentlemen were to pretend exhibiting a petition, but, in fact, they intended perdition, namely, to surprise the king; but fearing the papist's party was too strong for him, he determined to stay till he had gotten forces intended him from the Low Countries. You will observe, my lords, that in these treasons, they had procured a jargon, a watchword ; — in pretence, bonum in se, the king's safety, but in intent, malum in se, the king's destruction. This, by way of imitation, is the common trick of all traitors; and you will find that in the tragedies of all the treasons that have hitherto been enacted, there hath always been a cruel and bloody catastrophe, one thing having being pretended and another accomplished !

• Now, my masters of the jury, I come to your charge : treason is of four kinds, treason in corde, which is the root of the tree; treason in ore, which is the bud; treason in manu, which is the blossom; and treason in consummatione, which is the fruit. In the case in hand, you shall find the three first of these; these traitors being prevented before the consummation of their mischiefs; but though prevented, they are still traitors in corde, in ore, et in manu, and though their practices have been secret, they are still treasons. But this case exceedeth in wickedness all that ever went before, in two things, in determinatione finis et in electione mediorum. For it was said by these traitors, that “there would be no safety in England until the fox and his cubs were taken away," meaning, until the king and all his royal issue should be destroyed. Therefore in this treason the mischief exceeds the punishment and the terms of law; for this is not only crimen læse majestatis, but extirpate majestatis et totius progeniei suæ : for not only the king, but all his posterity were to be cut off! I shall not need, my lords, to speak any thing concerning the king, nor of the bounty and sweetness of his nature; whose thoughts are innocent! whose words are full of wisdom and learning! and whose works are full of honor!' Library of Entertaining Knowledge.-Criminal Trials, vol. 1, pp. 402-6.


Judge Conkling's Practice of the Courts of the United States. The subjects of the first part of this volume are, the organization and jurisdiction of the Supreme, Circuit, and District Courts of the United States. In the second part the author treats of the practice of the Supreme and Circuit Courts. In regard to the circuit courts the subjects are, forms of actions, limitations of actions, privilege from arrest, bail, the declaration, default, pleadings, judgment on nonsuit, evidence, jurors, notice of trial, amendments, death and substitution of parties, security for costs, removal of causes from the State courts, writ of error, carrying up a case to the supreme court by certificate of a disagreement of the justices of the circuit court. Part third relates to proccedings for the repeal of letters patent, for the remission of fines, penalties

forfeitures, and disabilities, and proceedings in naturalization. In the appendix are given, the rules of the supreme court, and those of all the courts of the United States in equity cases, and those of the circuit court of the Southern District of New York in admiralty cases, and the rules and orders of the district court in the Northern district of New York.

Though, from such a cursory examination as we have been able to give this work, we have an impression that some improvement might be made in the arrangement and the distribution of the subjects, yet this may be said of many law books that have a high reputation; and indeed it may be remarked in general of the law, that, in most of its branches, it is exceedingly difficult to reduce the materials to a complete, scientific division. One method of overcoming or avoiding this difficulty, in some degree, is to carry subdivisions to a great degree of minuteness, and this Judge Conkling has done in the body of his chapters. An inspection of the above list of subjects will show that this book will be very useful to every lawyer who practises in the courts of the United States, and indeed some parts of the work are applicable to prac

tice in the State courts. The author states the points and questions very distinctly, and seems, as far as we have examined his book, to have collected the law faithfully, and to treat the subjects clearly and satisfactorily. As a specimen of the work, and also for the purpose of giving information on a subject of general interest, we quote the chapter on Proceedings for the mitigation or remission of fines, penalties, forfeitures, and disabilities.

“The laws of the United States regulating commerce and navigation, like those of all commercial nations, are necessarily rigorous in their exactions, and highly penal. They require the performance of certain acts, and prohibit certain others; and inflict forfeitures and penalties for the non-observance of their injunctions, without regard, in general, to the motives of the offender.

• But however necessary such a code of legislation may be in this particular instance, to regulate the conduct of the subordinate ministerial officers of the government, and even the decisions of judicial tribunals, its inflexible enforcement, without the right of appeal to some dispensing power, would sometimes lead to intolerable injustice. Congress have accordingly provided a mode of relief in such cases, by authorizing the Secretary of the Treasury, upon a proper application to him for that purpose, to mitigate or altogether to remit the penalties of the laws, when, from the facts of the case, first judicially ascertained, he shall be of opinion that such penalties“ have been incurred without wilful negligence or any intention of fraud."

''This provision is contained in the act “to provide for mitigating or remitting the forfeitures, penalties, and disabilities, accruing in certain cases therein mentioned;" (vol. 2, p. 585); the first section of which is as follows:

"" That whenever any person or persons shall have incurred any fine, penalty, forfeiture, or disability,' or shall have been interested in any vessel, goods, wares, or merchandise, which shall have been subject to any seizure, forfeiture or disability, by force of any present or future law of the United States, for the laying, levying, or collecting, any duties or taxes, or by force of any present or future act, concerning the registering and recording of ships or vessels, or any act concerning the enrolling and licensing ships or vessels employed in the coasting trade or fish

· Such for example as the incapacity to hold any office under the United States for the period of seven years, inflicted by the 50th section of the collection act of March 2, 1799, (vol. 3, p. 136,) for a violation of its provisions. VOL. IX.-NO. XVIII.


eries, and for regulating the same, shall prefer his petition to the judge of the district, in which such fine, penalty, forfeiture, or disability, shall have accrued, truly and particularly setting forth the circumstances of his case, and shall pray that the same may be mitigated or remitted, the said judge shall inquire in a summary manner into the circumstances of the case; first causing reasonable notice to be given to the person or persons elaiming such fine, penalty or forfeiture, and to the attorney of the United States for such district, that each may have an opportunity of showing cause against the mitigation or remission thereof; and shall cause the facts which shall appear upon such inquiry, to be stated and annexed to the petition, and direct their transmission to the Secretary of the Treasury of the United States, who shall thereupon have power to mitigate or remit such fine, forfeiture or penalty, or remove such disability, or any part thereof, if, in his opinion, the same shall have been incurred without wilful negligence or any intention of fraud, in the person or persons incurring the same, and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued, upon such terms and conditions as he may deem reasonable and just.

* This act, it will be seen, extends to liabilities incurred by force of all future as well as existing laws of the description therein mentioned.

With regard to the persons who have a right to petition, and the time at which such right accrues, the act is sufficiently explicit.

• It will readily be seen, also, that in all cases in which by the act the Secretary is authorized to grant relief, he is invested with unlimited discretion as to the extent of the relief, and as to the terms and conditions upon which prosecutions, where they have been instituted, shall be stayed or discontinued. He has authority therefore to remit as well the share of the fine, penalty, or forfeiture to which the officers of the customs, or an informer, are by law entitled, as that which belongs to the United States.

•The act does not in terms prescribe any limitation in point of time to the right of petitioning and the power of remission; but from the nature of the case some such limit must exist. This is a point which has led to very earnest discussions; but so far at least as the interests of the officers of the customs or of informers are concerned, may now be considered as definitively settled by

· This act was by the terms of it limited to a short period, but was continued in force without limitation of time by an act for that purpose, passed February 11, 1800. (Vol. 3, p. 304.)

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