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1. Crimes, affecting the private property
of individuals, are, I. Larceny. II.
Malicious mischief. III. Forgery 229

2. Larceny is, 1. Simple. II. Mixed, or


3. Simple larceny is the felonious tak-

ing, and carrying away, of the per-

sonal goods of another. And it is, I.

Grand larceny; being above the value

of twelve pence. Which is felony;

in some cases within, in others with-

out, clergy. II. Petit larceny; to the

value of twelve pence or under.

Which is also felony, but not capital;

being punished with whipping, or


4. Mixed, or compound, larceny, is that

wherein the taking is accompanied

with the aggravation of being, I. From

the house. II. From the person

5. Larcenies from the house, by day or

night, are felonies without clergy,

when they are, I. Larcenies, above

twelve pence, from a church; or by

breaking a tent or booth in a market

or fair, by day or night, the owner or

his family being therein;-or by break-

ing a dwelling-house by day, any per-

son being therein;-or from a dwelling-

house by day, without breaking, any

person therein being put in fear;-or

from a dwelling-house by night, with

out breaking, the owner or his family

being therein, and put in fear. II.

Larcenies, of five shillings, by break-

ing the dwelling-house, shop, or ware

house, by day, though no person be

therein;-or, by privately stealing in

any shop, warehouse, coach-house, or

stable, by day or night, without break-

ing, and though no person be therein.

III. Larcenies, of forty shillings, from

a dwelling-house or its out-houses,

without breaking, and though no per-

son be therein

6 Larceny from the person is, I. By
privately stealing, from the person o
another, above the value of twelve
pence. II. By robbery; or the feloni
ous and forcible taking, from the per-
son of another, goods or money of any
value, by putting him in fear. These
are both felonies without clergy. An
attempt to rob is also felony
220 to 22 7. Malicious mischief, by destroying
dikes, goods, cattle, ships, garments,
fish-ponas, trees, woods, churches,
chapels, meeting-houses, houses, ou

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2. These recognizances may be condi-
tioned, I. To keep the peace.
be of the good behaviour
3. They may be taken by any justice or
conservator of the peace, at his own
discretion; or, at the request of such
as are entitled to demand the same
All persons, who have given suffi-
cient cause to apprehend an intended
breach of the peace, may be bound
over to keep the peace; and all those
that be not of good fame, may be bound
to the good behaviour; and may, upon
refusal in either case, be committed to

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1. Regular proceedings, in the

common law, are, I. Arrest.

mitment and bail. III. Prosecution.

IV. Process. V. Arraignment, and

its incidents. VI. Plea and issue.
VII. Trial and conviction. VIII. Cler-
gy. IX. Judgment, and its consequen-
ces. X. Reversal of judgment. XI.
Reprieve or pardon. XII. Execution 289
2. An arrest is the apprehending, or re-
straining, 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

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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








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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

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1. Clergy, or the benefit thereof, was
originally derived from the usurped
jurisdiction of the popish ecclesias-
tics; but hath since been new model.
led by several statutes

2. It is an exemption of the clergy from
any other secular punishment for felo
than imprisonment for a year, at
the court's discretion; and it is ex-
ended likewise, absolutely, to lay
peers, for the first offence; and to all
lay commoners, for the first offence
also, upon condition of branding, im-
prisonment, 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




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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





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394 to 598

1. A reprieve is a temporary suspension
of the judgment, I. Ex arbitrio judi-
cis. II. Ex necessitate legis; for preg
nancy, insanity, or the trial of identi
ty of person, which must always be
tried instanter

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






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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.









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
(c) Book I. ch 1

Philipp. 12. Bract. I. 1, e

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