lawful malicious act, puts an end to Killing another is, I. Manslaugh- 9 Manslaughter is the unlawful killing of another; without malice, express or implied. This is either, I. Vo- luntary upon a sudden heat. II. In- voluntary, in the commission of some unlawful act. Both are felony, but within clergy; except in the case of 10. Murder is when a person, of sound memory and discretion, unlawfully killeth any reasonable creature, in be- ing, and under the king's peace; with malice aforethought, either express or implied. This is felony, without cler- gy; punished with speedy death, and hanging in chains, or dissection 11. Petit treason, (being and aggravated degree of murder), is where the ser- vant kills his master, the wife her hus- band, or the ecclesiastic his superior. Penalty in men, to be drawn, and OFFENCES AGAINST THE PERSONS Crimes affecting the persons of indi- viduals, by other corporal injuries not amounting to homicide, are, I. May- hem; and also shooting at another. Penalties fine; imprisonment; judg ment of felony, without clergy. Forcible abduction, and marriage or defilement, of an heiress; which is felony also, stealing, and deflowering or marrying, any woman-child under the age of sixteeen years; for which the penalty is imprisonment, fine, and temporary forfeiture of her lands. III. Rape; and also carnal knowledge of a woman-child under the age of ten years. IV. Buggery, with man or beast.-Both these are felonies, with- out clergy. V. Assault. VI. Batte ry; especially of clergymen. VII. Wounding. Penalties, in all three: fine; imprisonment; and other corpo- ral punishment. VIII. False impri- sonment. Penalties: fine; imprison- ment; and (in some atrocious cases) the pains of pramunire, and incapacity of office or pardon. IX. Kidnapping, or, forcibly stealing away the king's 1. Crimes, affecting the private property 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- 6 Larceny from the person is, I. By 2. These recognizances may be condi- 1. In the method of punishment may be considered, I. The several courts of criminal jurisdiction. II. The seve- 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 nigh court of parliament; which pro- ceeds by impeachment. II. The court of the lord high steward; and the court of the king in full parliament: for the trial of capitally indicted peers. III. The court of King's Bench. IV. The court of chivalry. V. The court of admiralty, under the king's commis- sion. VI. The courts of oyer and ter- rainer and general gaol-delivery. VII. The court of quarter-sessions of the peace. VIII. The sheriff's tourn. IX. The court-leet. X. The court of the 1. Proceedings in criminal courts are, I. 2. Summary proceedings are such, where. by a man may be convicted of avers offences, without any formal process or jury, at the discretion of the judge or judges appointed by act of paria- 3. Such are, I. Trials of offences an 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 offen ces chiefly against the public police. III. Attachments for contempts to the superior courts of justice 1. Regular proceedings, in the mitment and bail. III. Prosecution. IV. Process. V. Arraignment, and its incidents. VI. Plea and issue. 3. This may be done, I. By warrant. II. By an officer, without warrant. III. 1. Commitment is the confinement of one's person in prison for safe custody, by warrant from proper authority; un less, in bailable offences, he puts in sufficient bail, or security for his fu- 2. The magistrate is bound to take rea- sonable bail, if offered; unless the of- 3. Such are, I. Persons accused of trea- son; 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. Per sons taken with the mainour. IX. Persons accused of arson. X. Ex- 4. The magistrate may, at his discretion, OF THE SEVERAL MODES OF PROSECUTION 299 301 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 CHAPTER XXIV. PROCESS UPON AN INDICTMENT 301 301 302 307-312 312 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 CHAPTER XXVI. Page 322 324-331 332 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 332-341 2. Hereupon issue is joined by the clerk of the arraigns, on behalf of the king 341 CHAPTER XXVII. 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 365 371 372 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 375 380 381 381-388 394 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 CHAPTER XXXII. OF EXECUTION 396 398 403 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. 403 COMMENTARIES ON THE LAWS OF ENGLAND BOOK THE THIRD. OF PRIVATE WRONGS. CHAPTER I. 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 |