Constans; 1“ ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis pænis subdantur infames, qui sunt, vel qui futuri sunt rei.” Which leads me to add a word concerning its punish

ment.

This the voice of nature and of reason, and the express law of God, determined to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven: so that this is an universal, not merely a provincial, precept. And our ancient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death; though Fleta says they should be buried alive: either of which punishments was indifferently used for this crime among the ancient Goths. But now the general punishment of all felonies is the same, namely, by hanging: and this offence, being in the times of popery only subject to ecclesiastical censures, was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6. revived and confirmed by 5 Eliz. c. 17. And the rule of law herein is, that if both are arrived at years of discre tion, agentes et consentientes pari pœna plectantur.

These are all the felonious offences more immediately against the personal security of the subject. The inferior offences, or misdemesnors, that fall under this head, are assaults, batteries, wounding, false imprisonment, and kidnapping.

V. VI. VII. With regard to the nature of the three first of these offences in general, I have nothing farther to add to what has already been observed in the preceding book of these commentaries; when we consider them as private wrongs, or civil injuries, for which a satisfaction or remedy is given to the party aggrieved. But, taken in a public light as a breach of the king's peace, an affront to his government and a damage done to his subjects, they are also indictable and punishable with fines and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious dep Stiernh. de jure Goth. l. 3.

1 Cod. 9. 9. 31.
m Levit. xx. 13. 15.
n Britt. c.9.

c. 2.

q 3 Inst. 50.

• 1. 1. c. 37.

See Vol. III. pag. 110.

sign. As in case of an assault with an intent to murder, or with an intent to commit either of the crimes last spoken of; for which intentional assaults, in the two last cases, indictments are much more usual than for the absolute perpetration of the facts themselves, on account of the difficulty of proof: or, when both parties are consenting to an unnatural attempt, it is usual not to charge any assault; but that one of them laid hands on the other with intent to commit, and that the other permitted the same with intent to suffer, the commission of the abominable crime beforementioned. And, in all these cases, besides heavy fine and imprisonment, it is usual to award judgment of the pillory.

There is also one species of battery, more atrocious and penal than the rest, which is the beating of a clerk in orders, or clergyman; on account of the respect and reverence due to his sacred character, as the minister and embassador of peace. Accordingly it is enacted by the statute called articuli cleri, 9 Edw. II. c. 3. that if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the king; that is, by indictment in the king's courts: and the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed: which if the offender will redeem by money, to be given to the bishop, or the party aggrieved, it may be sued for before the bishop; whereas otherwise to sue in any spiritual court, for civil damages for the battery, falls within the danger of præmunire. But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commutation for penance." So that upon the whole it appears, that a person guilty of such brutal behaviour to a clergyman, is subject to three kinds of prosecution, all of which may be pursued for one and the same offence: an indictment for the breach of the king's peace by such assault and battery; a civil action, for the special damage sustained by the party injured; and a suit in the ecclesiastical court, first, pro cor rectione et sulute animæ, by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined: it being usual in those

$ 1 Hawk. P. C. 65.

t 2 Inst. 492.620.

u Artic. Cleri. Edw. II. c.4. F. N. B. 53.

courts to exchange their spiritual censures for a round compensation in money; perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animæ.

VIII. The two remaining crimes and offences, against the persons of his majesty's subjects, are infringements of their natural liberty: concerning the first of which, false imprisonment, its nature and incidents, I must content myself with referring the student to what was observed in the preceding volume," when we considered it as a mere civil injury. But besides the private satisfaction given to the individual by action, the law also demands public vengeance for the breach of the king's peace, for the loss which the state sustains by the confinement of one of its members, and for the infringement of the good order of society. We have seen before, that the most atrocious degree of this offence, that of sending any subject of this realm a prisoner into parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is punished with the pains of præmunire, and incapacity to hold any office, without any possibility of pardon. And we may also add, that by statute 43 Eliz. c. 13. to carry any one by force out of the four northern counties, or imprison him within the same, in order to ransom him or make spoil of his person or goods, is felony without benefit of clergy, in the principals and all accessories before the fact. Inferior degrees of the same offence, of false imprisonment, are also punishable by indictment, like assaults and batteries, and the delinquent may be fined and imprisoned." And indeed there can be no doubt, but that all kinds of crimes of a public nature, all disturbances of the peace, all oppressions, and other misdemesnors whatsoever of a notoriously evil example, may be indicted at the suit of the king.

a

IX. The other remaining offence, that of kidnapping, being the forcible abduction or stealing away of a man, woman, or child, from their own country, and sending them into another, was capital by the Jewish law.

v2 Roll. Rep. 384.

See Vol. III. pag 118. * See pag. 106.

y Stat. 31 Car. II. c. 2.

"He

that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death." b So likewise in the civil law, the offence of spiriting away and stealing men and children; which was called plagium, and the offenders plagiarii, was punished with death. This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory. And also the statute 11 & 12 W. III. c. 7. though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad, as are thus kidnapped or spirited away; by enacting, that if any captain of a merchant vessel shall, during his being abroad, force any person on shore, or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months imprisonment. And thus much for offences that more immediately affect the persons of individuals.

CHAP. XVI.

OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.

THE only two offences, that more immediately affect the habitations of individuals or private subjects, are those of arson and burglary.

I. Arson, ab ardendo, is the malicious and wilful burning of the house or out-house of another man. This is an offence of very great malignity, and much more pernicious to the public than simple theft: because, first, it is an offence against that right of habitation, which is acquired by the law of nature as well as by the laws of society; next, because of the terror and confusion that necessarily attend it; and lastly, because in simple theft the thing stolen only

b Exod. xxi. 16.

c Ff. 48. 15. 1.
VOL. IV. PART I.

T

d Raym. 474. 2 Show. 221. Skin. 47. Comb. 10.

changes its master, but still remains in esse for the benefit of the public, whereas by burning the very substance is absolutely destroyed. It is also frequently more destructive than murder itself, of which too it is often the cause: since murder, atrocious as it is, seldom extends beyond the felonious act designed; whereas fire too frequently involves in the common calamity persons unknown to the incendiary, and not intended to be hurt by him, and friends as well as enemies. For which reason the civil law a punishes with death such as maliciously set fire to houses in towns, and contiguous to others; but it is more merciful to such as only fire a cottage, or house, standing by itself. (26)

Our English law also distinguishes with much accuracy upon this crime. And therefore we will inquire, first, what is such a house as may be the subject of this of. fence: next, wherein the offence itself consists, or what amounts to a burning of such house; and lastly, how the offence is punished.

1. Not only the bare dwelling-house, but all out-houses that are parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson." And this by the common law: which also accounted it felony to burn a single barn in the field, if filled with hay or corn, though not parcel of the dwelling-house. The burning of a stack of corn was anciently likewise accounted arson. And indeed all the niceties and distinctions which we meet with in our books, concerning what shall, or shall not, amount to arson seem now to be taken away by a variety of statutes; which will be mentioned in the next chapter, and have made the punishment of wilful burning equally extensive as the mischief. The offence of arson, strictly so called, may be committed by wilfully setting fire to one's own house, provided one's neighbour's house is thereby also burnt; but if no mischief is done but to one's own, it does not amount to felony, though the fire

(26) But by the 43 Geo. III. c. 58. wilfully setting fire to any house, barn, coach-house, out-house, mill, &c, is made felony without benefit of clergy.