the lord steward, &c. by statute of Henry VIII. III. The university Page courts 275-277 CHAPTER XX. 243 247 251 OF SUMMARY CONVICTIONS 280 to 288 1. Proceedings in criminal courts are, I. Summary. II. Regular 2. Summary proceedings are such, whereby a man may be convicted of divers offences, without any formal process or jury, at the discretion of the judge or judges appointed by act of parliament, or common law 3. Such are, I. Trials of offences and frauds against the laws of excise and other branches of the king's revenue. II. Convictions before justices of the peace upon a variety of minute offences chiefly against the public police. III. Attachments for contempts to the superior courts of justice 252 OF ARRESTS 253 256 CHAPTER XXI. 280 280 281-288 289 to 295 1. Regular proceedings, in the courts of common law, are, I. Arrest. II. Commitment and bail. III. Prosecution. IV. Process. V. Arraignment, and its incidents. VI. Plea and issue. VII. Trial and conviction. VIII. Clergy. IX. Judgment, and its consequences. X. Reversal of judgment. XI. Reprieve or pardon. XII. Execution 289 2. An arrest is the apprehending, or restraining, of one's person; in order to be forthcoming to answer a crime, whereof one is accused or suspected 3. This may be done, I. By warrant. II. By an officer, without warrant. III. By a private person, without warrant. IV. By hue and cry CHAPTER XXII. 258 OF COMMITMENT AND BAIL 258 289 289-295 296 to 299 1. Commitment is the confinement of one's person in prison for safe custody, by warrant from proper authority; unless, in bailable offences, he puts in sufficient bail, or security for his future appearance 2. The magistrate is bound to take reasonable bail, if offered; unless the offender be not bailable 3. Such are, I. Persons accused of treason; or, II. Of murder; or, III. Of manslaughter, by indictment; or if the prisoner was clearly the slayer. IV. Prison-breakers, when committed for felony. V. Outlaws. VI. Those who have abjured the realm. VII. Approvers, and appellees. VIII. Persons taken with the mainour. IX. Persons accused of arson. X. Excommunicated persons Page houses, corn, hay, straw, sea or river banks, hop-binds, coal-mines, (or engines thereunto belonging), or any fences for inclosures by act of Parliament, is felony, and, in most cases, without benefit of clergy 8. Forgery is the fraudulent making or alteration of a writing, in prejudice of another's right. Penalties: fine; imprisonment; pillory; loss of nose and ears; forfeiture; judgment of felony, without clergy CHAPTER XVIII. OF THE MEANS OF PREVENTING OF FENCES 251 to 256 1. Crimes and misdemesnors may be prevented, by compelling suspected persons to give security which is effected by binding them in a conditional recognizance to the king, taken in court, or by a magistrate out of court 2. These recognizances may be condi- 3. They may be taken by any justice or gaol CHAPTER XIX. OF COURTS OF A CRIMINAL JURISDIC TION 258 to 277 1. In the method of punishment may be considered, I. The several courts of criminal jurisdiction. II. The several proceedings therein 2. The criminal courts are, I. Those of a public and general jurisdiction throughout the realm. II. Those of a private and special jurisdiction 3. Public criminal courts are, I. The coroner. 258-275 4. Private criminal courts are, I. The court of the lord steward, &c. by statute of Henry VII. II. The court of 4. The magistrate may, at his discretion, admit or not admit to bail, persons not of good fame, charged with other felo 296 296 298 1. Prosecution, or the manner of accusing offenders, is either by a previous finding of a grand jury, as, I. By presentiment. II. By indictment. Or, without such finding-III. By information. IV. By appeal 2. A presentment is the notice taken by a grand jury of any offence, from their own knowledge or observation 3. An indictment is a written accusation of one or more persons of a crime or misdemesnor, preferred to, and presented on oath by, a grand jury; expressing, with sufficient certainty, the person, time, place, and offence 4. An information is, I. At the suit of the king and a subject, upon penal statutes. II. At the suit of the king only. Either, 1. Filed by the attorney-general ex officio, for such misdemesnors as affect the king's person or government: or, 2. Filed by the master of the crown-office (with leave of the court of King's Bench) at the relation of some private subject, for other gross and notorious misdemesnors. All differing from indictments in this: that they are exhibited by the informer, or the king's officer, and not on the oath of a grand jury 5. An appeal is an accusation or suit, brought by one private subject against another, for larceny, rape, mayhem, arson, or homicide which the king cannot discharge or pardon, but the party alone can release 301 301 302 307-312 312 CHAPTER XXIV. OF PROCESS UPON AN INDICTMENT 318 to 320 1. Process to bring in an offender, when indicted in his absence, is, in misdemesnors, by venire facias, distress infinite, and capias; in capital crimes, by capias only and, in both, by outlawry 318-320 2. During this stage of proceedings, the indictment may be removed into the court of King's Bench from any inferior jurisdiction, by writ of certiorari facias: and cognizance must be claimed in places of exclusive jurisdiction 320 CHAPTER XXV. OF ARRAIGNMENT, AND ITS INCI DENTS 322 to 331 1. Arraignment, is the calling of the CHAPTER XXVI. OF TRIAL, AND CONVICTION 1. Trials of offences, by the laws of England, were and are, I. By ordeal, of either fire or water. II. By the corsned. Both these have been long abolished. III. By battel, in appeals and approvements. IV. By the peers of Great Britain. V. By jury 342-349 2. The method and process of trial by jury is, I. The impanelling of the jury. II. Challenges: 1st, for cause; 2ndly, peremptory. III. Tales de circumstantibus. IV. The oath of the jury. V. The evidence. VI. The verdict, either gencral or special 350-361 3. Conviction, is when the prisoner pleads, or is found, guilty whereupon, in felonies, the prosecutor is entitled to, I. His expenses. II. Restitution of his goods CHAPTER XXVIII. 361-363 365 to 374 OF THE BENEFIT OF CLERGY 1. Clergy, or the benefit thereof, was originally derived from the usurped jurisdiction of the popish ecclesiastics; but hath since been new modelled by several statutes 2. It is an exemption of the clergy from any other secular punishment for felony, than imprisonment for a year, at the court's discretion; and it is extended likewise, absolutely, to lay peers, for the first offence; and to all lay commoners, for the first offence also, upon condition of branding, imprisonment, or transportation 3. All felonies are entitled to the benefit of clergy, except such as are now ousted by particular statutes 4. Felons, on receiving the benefit of clergy, (though they forfeit their goods to the crown), are discharged of all 305 371 372 4. Forfeiture to the king is, I. Of real estates, upon attainder :-in high treason, absolutely, till the death of the late pretender's sons; -in felonies, for the king's year, day, and waste ;in misprision of treason, assaults on a judge, or battery sitting the courts; during the life of the offender. II. Of personal estates, upon conviction; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of the king's courts, and flight 381-388 1. Judgments, and their consequences, may be avoided, I. By falsifying, or reversing, the attainder. II. By reprieve, or pardon 2. Attainders may be falsified, or revers 390 392 394 to 398 1. A reprieve is a temporary suspension of the judgment, I. Ex arbitrio judicis. II. Ex necessitate legis; for pregnancy, insanity, or the trial of identity of person, which must always be tried instanter 394-396 2. A pardon is a permanent avoider of the judgment by the king's majesty, in offences against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender a new man 3. The king cannot pardon, I. Imprisonment of the subject beyond the seas. II. Offences prosecuted by appeal. III. Common nuisances. IV. Offences against popular or penal statutes, after information brought by a subject. Nor is his pardon pleadable to an impeachment by the commons in Parliament CHAPTER XXXII. OF EXECUTION 1. Execution is the completion of human punishment, and must be strictly performed in the manner which the law directs 2. The warrant for execution is sometimes under the hand and seal of the Judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judge's signing the calendar of prisoners, with their separate judgments in the margin. 396 398 403 403 403 COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE THIRD. OF PRIVATE WRONGS. CHAPTER I. OF THE REDRESS OF PRIVATE WRONGS BY THE Ar the opening of these Commentaries (a) municipal law was in general defined to be, "a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong (b)." From hence therefore it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned (c) the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden, and redressed by the laws of England. *In the prosecution of the first of these inquiries, we distin- [ *2 ] guished rights into two sorts: first, such as concern, or are annexed to the persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these Commentaries: and secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things: and these, with the means of transferring them from man to man, were the subject of the second book. I am now therefore to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas. Wrongs are divisible into two sorts or species: private wrongs, and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemesnors. To investigate the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till the next or concluding one. (a) Introd. § 2. (b) Sanctio justa, jubens honesta, et prohibens contraria. Cic. 11. Philipp. 12. Bract. 1. 1, с. 3. (c) Book I. ch. 1. The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined, and wrongs prohibited. This reme dy is therefore principally to be sought by application to these [*3] *courts of justice; that is, by civil suit or action. For which reason our chief employment in this book will be to consider the redress of private wrongs, by suit or action in courts. But as there are certain injuries of such a nature, that some of them furnish and others require a more speedy remedy, than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat, before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species: first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law. And, first, of that redress of private injuries, which is obtained by the mere act of the parties. This is of two sorts: first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order. Of the first sort, or that which arises from the sole act of the injured party, is, I. The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations (1), be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray (d). For the law, in (d) 2 Roll. Abr. 546. (1) It is said, that according to 1 Salk. 407. 1 Ld. Raym. 62. and Bul. N. P. 18. a master cannot justify an assault in defence of his servant, because he might have an action per quod servitium amisit. But according to 2 Rol. Ab. 546. D. pl. 2. Owen, 151. Bac. Ab. Master and Servant, P. such an interference by the master is lawful; and Ld. Hale, 1 vol. 484. says, "That the law had been for a master killing in the necessary defence of his servant, the husband in defence of his wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had if it had been done by himself, for they are in a mutual relation one to an other." But though, as observed by the learn 1 Hawk. P. C. 131. ed Commentator, the law respects the passions of the human mind, yet it does not allow this interference as an indulgence of revenge, but merely to prevent the injury, or a repetition of it; and therefore in a plea by a father, master, &c., founded on this ground, it is necessary to state that the plaintiff would have beat the son, servant, &c. if the defendant had not interfered; and if it be merely alleged that the plaintiff had assaulted or beat, &c. it will be demurable, for if the assault on the master, &c. be over, the servant cannot strike by way of revenge, but merely in order to prevent an injury. 2 Stra. 953. When a person does not stand in either of these relations, he cannot justify an interference on behalf of the party injured, but merely as an indifferent person, to preserve the peace. 2 Stra. 954. |