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lawful malicious act, puts an end to
Killing another is, I. Manslaugh-
OFFENCES AGAINST THE PERSONS
1. Crimes, affecting the private property
6 Larceny from the person is, I. By
2. These recognizances may be condi-
criminal jurisdiction. II. The seve-
superior courts of justice
its incidents. VI. Plea and issue.
OF THE SEVERAL MODES OF PROSECUTION
301 to 312
1. Prosecution, or the manner of accusing offenders, is either by a previous finding of a grand jury, as, I. By presentment. 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 misdemeanor, 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. Field by the attor ney-general ex officio, for such misdemeanors 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 misdemea nors. 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, mayhom, arson, or homicide: which the king cannot discharge or pardon, but the party alone can release
PROCESS UPON AN INDICTMENT
prisoner to the bar of the court, to answer the matter of the indictment 2. Incident hereunto are, I. The standing mute of the prisoner; for which, in petit treason, and felonies of death, he shall undergo the peine for et dure. II. His confession: which is either simple; or by way of approvement
332 to 34
OF PLEA, AND ISSUE 1. The plea, or defensive matter alleged by the prisoner, may be, I. A plea to the jurisdiction. II. A demurrer in point of law. III. A plea in abatement. IV. A special plea in bar: which is 1st, auterfoits acquit; 2dly, auterfoits convict; 3dly, auterfoits attaint; 4thly, a pardon. V. The general issue, not guilty
2. Hereupon issue is joined by the clerk of the arraigns, on behalf of the king 341
342 to 363
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 342-348 2. The method and process of trial by jury is, I. The impanelling of the jury. II. Challenges: 1st, for cause; 2dly, peremptory. III. Tales de circumstantibus. IV. The oath of the jury. V. The evidence. VI. The verdict, either general or special 3. Conviction, is when the prisoner pleads, or is found, guilty: whereupon, in felonies, the prosecutor is en titled to, I. His expenses. II Restitution of his goods
OF THE BENEFIT OF CLERGY 365 to 374
2. It is an exemption of the clergy from
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
1. Judgment (unless any matter be offer. ed in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law
Attainder of a criminal, is the immediate consequence, I. Of having judgment of death pronounced upon him. II. Of outlawry for a capital offence 3. The consequences of attainder are, 1. Forfeiture to the king. II. Corruption of blood
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
394 to 598
OF REPRIEVE AND PARDON
394-39€ 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. Imprison ment 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
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.
THE LAWS OF ENGLAND
BOOK THE THIRD.
OF PRIVATE WRONGS.
or THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES.
AT 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 fus precedent to that of nefus.
Wrongs are divisible into two sorts or species: private wrongs, and pub ic wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are
(a) Introd. ◊ 2 (b) Sancti
tta, jubens honesta, et prohibens
contraria. Cic. 11
Philipp. 12. Bract. I. 1, e