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ing or destroying the instrument itself. Hyde v. Hyde, 1 Eq. Cas. Abr. 409; Rob. on Wills, 367, n. Cancelling a will, animo revocandi, is a revocation of it, and it is unnecessary to show a complete destruction or obliteration. 2B.&B. 650; 3 B. & A. 489; 2 Bl. R. 1043; 2 Nott & M'Cord, 272; Whart. Dig. Wills, c.; 4 Mass. 462. But the mere act of cancelling a will is nothing, unless it be done animo revocandi, and evidence is admissible to show, quo animo the testator cancelled it. 7 Johns. 394; 2 Dall. 266; S. C. 2 Yeates, 170; 4 Serg. & Rawle, 297; cited 2 Dall. 267, n.; 3 Hen. & Munf. 502; Rob. on Wills, 365; Lovel. 178; Toll, on Ex'rs, Index, h. t.; 3 Stark. Ev. 1714; 1 Addams's Rep. 52; 2 Eccl. Rep. 23. As to the effect of cancelling a deed, which has not been recorded, see 1 Addams's Rep. 1; Palm. 403; Latch. 226; Gilb. Law Ev. 109, 110; 2 H. Bl. 263; 2 Johns. 87; 1 Greenl. R. 78; 10 Mass. 403; 9 Pick. 105; 4 N. H. Rep. 191; Greenl. Ev. § 265.
CANON, eccl. law. This word is taken from the Greek, and signifies a rule or law. In the ecclesiastical law, it is also applied to designate an order of religious persons.
CANON LAW, see Law, Canon.
CANNON SHOT, war, is the distance which a cannon will throw a ball. The whole space of the sea, within cannon shot of the coast, is considered as making a part of the territory; and, for that reason, a vessel taken under the cannon of a neutral fortress, is not a lawful prize. Vatt. b. 1, c. 23, s. 289, in finem; Chitt. Law of Nat. 113; Mart. Law of Nat. b. 8, c. 6, s. 6; 3 Rob. Adm. Rep. 102, 336; 5 lb. 373; 3 Hagg. Adm. R. 257. This part of the sea being considered as part of the adjacent territory, it follows that magistrates can cause the orders of their
governments to be executed there. Three miles is considered as the greatest distance that the force of gun-powder can carry a bomb or a ball. Azun. Mar. Law, part 2, c. 2, art. 2, § 15; Bouch. Inst. n. 1848. The anonymous author of the poem, del della Nature, lib. 5, expresses this idea in the following lines:
Tanta s'avanza in mar questo dominio.
Corer di cavo bronzo ucccsuo tulminc.
Far as the sovereign can defend his sway, Extends his empire o'er the wat'ry way; The shot sent thundering to the liquid plain, Assigns the limits of his just domain.
CAPACITY. This word is taken in various senses. 1. It is that aptitude which good order requires a man should possess for the employment to which he is destined. The constitution requires that the president, senators and representatives should have attained certain ages, and in the case of the senators and representatives that they should have local qualifications; without these, they have no capacity to serve in these offices. 2. Capacity is more particularly applied to the legal ability in a party to contract, to devise or bequeath, to grant lands or receive such grants, to give or to receive, to inherit, to marry, and the like. 2 Com. Dig. 294; Dane's Ab. Index, h. t.
CAPAX DOLL Capable of committing crime. This is said of one who has sufficient mind and understanding to be made responsible for his actions, and who possesses legal discretion, (q. v.)
CAPE, English law, is a judicial writ touching a plea of land and tenements. The writs which bear this name are of two kinds, namely, cape magnum, or grand cape; and cape parvum, or petit cape.
CAPIAS, practice. This word, the signification of which is "that you take," is applicable to many heads of practice. Several writs and processes commanding the sheriff to take the person of the defendant are known by the name of capias. The writ in ordinary use bearing this name is the capias ad respondendum, simply so called. See 3 Bl. Com. 281.
CAPIAS AD AUDIENDUM JUDICIUM, practice, is a writ issued in a case of misdemeanor, after the defendant has appeared and is found guilty, and is not present when called. This writ is to bring him to judgment. 4 Bl. Com. 368.
CAPIAS AD RESPONDENDUM, in practice, is a writ commanding the sheriff, or other proper officer, " to take the body of the defendant, and to keep the same to answer, ad respondendum, the plaintiff in a plea," &C. The amount of bail, demanded is endorsed on the writ. Under this writ the defendant is to be arrested, and he gives a bail bond to the officer, or it is the duty of the latter to imprison him. Sometimes, when it is too late to issue a summons, or a capias is preferred for any reason, it is the practice in some places, as lately in Pennsylvania, to endorse on the capias, "no bail required;" in which case after the defendant has been arrested he is required to endorse on the writ, " I authorise the prothonotary to enter my appearance to the action," and subscribe his name. He is then discharged. If the writ has been served and the defendant have not given bail, but remains in custody, it is returned C. C. cepi corpus; if he have given bail, it is returned C. C. B. B. cepi corpus, Bail Bond; if the defendant's appearance have been accepted, the return is "C. C. and defendant's appearance accepted." This, like other writs, bears teste a general teste day, and is returnable
on a regular return day. 1 Penns. Pr. 36; 1 Arch. Pr. 68.
CAPIAS AD SATISFACIENDUM, practice, is a writ issuing out of a court, in a case where a judgment has been rendered, directed to the proper officer of the court, commanding him to take the defendant, and him safely keep, so that he may have his body in court on the return day, to satisfy, ad satisfaciendum, the plaintiff. This writ is tested on a general teste day and returnable on a regular return-day.
It lies after judgment in most instances in which the defendant was subject to a capias ad respondendum before, and plaintiffs are subject to it, when judgment has been given against them for costs. Members of congress and of the legislature eundo, moranda, et dedeundo, to, at, and from the places of sitting of congress, or of the legislature, are not liable, on account of their public capacity, to this process; nor are ambassadors, (q. v.) and other public ministers and their servants. Act of Congress of April 30, 1790, s. 25 and 26, Story's Laws United States, 88; 1 Dunl. Pr. 95, 96; Com. Dig. Ambassador, B; 4 Dall. 321. In Pennsylvania women are not subject to this writ except in actions founded upon tort, or claims arising otherwise than ex contractu. 7 Reed's Laws of Pa. 150. See Arrest.
It is executed by arresting the body of the defendant, and keeping him in custody; discharging him upon his giving security for the payment of the debt, or that he will return in custody again before the return day, is an escape, although he do return; 13 Johns. R. 366; 8 Johns. R. 98; and the sheriff is liable for the debt. In England a payment to the sheriff or other officer having the ca. sa. is no payment to the plaintiff. Freem. 842; Lutw. 587; 2 Lev. 203 ; 1 Arch. Pr. 278; the law is different in Pennsylvania; 3 Serg. & Rawle, 467. The return made by the officer is either C. C. & C, cepi corpus et commititur, if the defendant have been arrested and held in custody; or N. E. I., non est inventus, if the officer has not been able to find him. This writ is in common language called a ca. sa.
CAPIAS PRO FINE, practice, crim. law, is the name of a writ which issues against a defendant, who has been fined for some offence against a statute, and who does not discharge it according to the judgment ; this writ commands the sheriff to arrest the defendant and commit him to prison, there to remain till he shall pay the said fine, or be otherwise discharged according to law.
CAPIAS UTLUGATUM, in En glish practice; the capias utlugatum is general or special; the former against the person only, the latter against the person, lands and goods. This writ issues upon the judgment of outlawry being returned by the sheriff upon the exigent, and it takes its name from the words of the mandatory part of the writ, which states the defendant being outlawed utlugatum, or ut.
The general writ of capias utlugatum commands the sheriff to take the defendant, so that he have him before the king on a general return day, wheresoever, &c., to do and receive what the court shall consider of him.
The special capias utlugatum,WVs the general writ, commands the sheriff to take the defendant; and thus far it is executed, and the defendant is discharged upon an attorney's undertaking, or upon giving bond to the sheriff, in the same manner as when the writ is general. But the special writ also commands the sheriff to inquire by a jury of the defendant's goods and lands, to extend and appraise the same, and to take
them in the king's hands and safely keep them, so that he may answer to the king for the value and issues of the same. 2 Arch. Pr. 161.
CAPIAS IN WITHERNAM, practice, is a writ issued after a return of elongata or eloined has been made to a writ of retorno hubendo, commanding the sheriff to take so many of the distrainer's goods by way of reprisal, as will equal the goods mentioned in the retorno habendo. 2 Inst. 140; F. N. B. 68; and see form in 2 Sell. Pr. 169.
CAPIATUR. The name of a writ which was issued to levy a fine due to the king, imposed upon an offender for a grave offence. Bac. Ab. Fines and Amercements, in prin.
CAPITAL, political economy, commerce. In political economy, it is that portion of the produce of a country, which may be made directly available either to support the human species or to the facilitating of production. In commerce, as applied to individuals, it is those objects, whether consisting of money or other property, which a merchant, trader, or other person adventures in an undertaking, or which he contributes to the common stock of a partnership. It signifies money put out at interest. The fund of a trading company or corporation is also called capital, but in this sense the word stock is gene- rally added to it; thus we say the capital stock of the Bank of North America.
CAPITAL CRIME, is one for the punishment of which death is inflicted, which punishment is called capital punishment. Dane's Ab. Index, h. t.
The subject of capital punishment has occupied the attention of the most enlightened men for a long time, par- ticularly since the middle of the last century; and none deserves to bo more carefully investigated. The right of punishing its members by society cannot be denied; but how far that right is to extend seems not to be agreed upon. Baccaria in his celebrated Treatise of crimes and punishments, contends with zeal, that the punishment of death ought not to be inflicted in times of peace; and only when it is necessary to support the laws, and they can be supported in no other manner, at other times, § 28.
It is not within the plan of this work to examine the question, whether the punishment is allowed by the natural law. The principal arguments for and against it are here given.
1. The arguments used in favour of the abolition of capital punishment, are,
1st. That existence is a right which men hold from God, and which society in a body can no more deprive them of, than a member of that society can do so, because society is governed by the immutable laws of humanity.
2d. That, even should the right be admitted, this is a restraint badly selected, which does not attain its end, death being less dreaded, than either solitary confinement for life, or the performance of hard labour and disgrace for life.
3d. That the infliction of the punishment does not prevent crimes, any more than other less severe but longer punishments.
4th. That as a public example, this punishment is only a barbarous show, better calculated to accustom mankind to the contemplation of bloodshed, than to restrain them.
5th. That the law by taking life, when it is unnecessary for the safety of society, must act by some other motive; this can be no other than revenge. To the extent the law punishes an individual beyond what is requisite for the preservation of society, and the restoration of the offender, is cruel and barbarous. The law
to prevent a barbarous act, commits one of the same kind; it kills one of the members of society, to convince the others that killing is unlawful.
6th. That by depriving a man of life, society is deprived of the benefits which he is able to confer upon it; for, according to the vulgar phrase, a man hanged is good for nothing.
7th. That experience has proved that offences which were formerly punished with death, have not increased since the punishment has been changed to a milder one.
2. The arguments which have been urged on the other side, are,
1st. That all that humanity commands to legislators is that they should inflict only necessary and useful punishments; and that if they keep within these bounds, the law may permit an extreme remedy, even the punishment of death, when it is requisite for the safety of society.
2d. That, whatever be said to the contrary, this punishment is more repulsive than any other, as life is esteemed above all things, and death is considered as the greatest of evils, particularly when it is accompanied by infamy.
M. That restrained, as this punishment ought to be, to the greatest crimes, it can never lose its efficacy as an example, nor harden the multitude by the frequency of executions.
4th. That unless this punishment be placed at the top of the scale of punishment, criminals will always kill, when they can, while committing an inferior crime, as the punishment will be increased only by a more protracted imprisonment, where they still will hope for a pardon or an escape.
5th. The essays which have been made by two countries at least, (Russia, under the reign of Elizabeth, and Tuscany, under the reign of Leopold, where the punishment of death was abolished,) have proved unsuccessful, as that punishment has been restored in both.
Arguments on theological grounds have also been advanced on both sides.
Vide Baccaria on Crimes and Punishments; Voltaire, h. t.; Livingston's excellent arguments in his Report on a plan of a penal code. Li v. Syst. Pen. Law, 22; Bentham on Legislation, part 3, ch. 9; Report to the N. Y. Legislature.
CAPITATION. A poll-tax; an imposition which is yearly laid on each person according to his estate and ability. The constitution of the United States provides that " no capitation, or other direct tax, shall be laid, unless in proportion to the census, or enumeration thereinbefore directed to be taken." Art. 1, s. 9, n. 4. See 3 Dall. 171 ; 5 Wheat. 317.
CAPITE, descents, by the head. Distribution or succession per capite is said to take place when every one of the kindred in equal degree, and not jure representationis, receive an equal part of an estate.
CAPITULARIES. The CapituIaria or Capitularies, was a code of laws promulgated by Childebert, Clotaire, Carloman, Pepin, Charlemagne and other kings. It was so called from the small chapters or heads into which they were divided. The edition by Baluze, published in 1677, is said to be the best.
CAPITULATION, war, is the treaty which determines the conditions under which a fortified place is abandoned to the commanding officer of the army which besieges it. On surrender by capitulation, all the property of the inhabitants protected by the articles, is considered by the law of nations as neutral, and not subject to capture on the high seas, by the belligerent or its ally. 2 Dall. i.
CAPTAIN or SEA CAPTAIN, mar. law. The name given to the
master or commander of a vessel. He is known in this country very generally by the name of master, (q. v.) He is also frequently denominated patron in foreign laws and books. There are captains in the navy of the United States, who are officers appointed by government, and those who are employed in the service of merchants. It is proposed to consider the duty of the latter. Towards the owner of the vessel he is bound by his personal attention and care, to take all necessary precautions for her safety ; to proceed on the voyage in which such vessel may be engaged, and to obey faithfully his instructions; and by all means in his power to promote the interest of his owner. But he is not required to violate good faith, nor employ fraud, even with an enemy. 3 Cranch, 242. Towards others it is the policy of the law to hold him responsible for all losses or damages that may happen to the goods committed to his charge, whether they arise from negligence, ignorance, or wilful misconduct of himself or his mariners or any other on board the ship. As soon, therefore, as goods are put on board, they are in the master's charge, and he is bound to deliver them again in the same state in which they were shipped, and he is answerable for all losses or damages they may sustain, unless it proceed from an inherent defect in the article, or from some accident or misfortune which could not be prevented. It may be laid down as a general rule that the captain is responsible when any loss occurs in consequence of his doing what he ought not to do, u nless he was forced by the act of God, the enemies of the United States, or the perils of the sea. 1 Marsh. Ins. 241 ; Pard. n. 658.
The rights of the captain are, to choose his crew; as he is responsible for their acts, this seems but just, but a reasonable deference to the rights