There is also one species of battery, more atrocious and penal han the est, 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 ambassador of peace. Accordingly it is enacted by the statute called articuli cleri, 9 Edw. II. c. 3 (23), 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 be fore 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 other. wise to sue in any spiritual court for civil damages for the battery, falls within the danger of praemunire (t). But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commu tation for penance (u). 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 bat tery; a civil action, for the special damage sustained by the party injured; and a suit in the ecclesiastical court, first, pro correctione et salute animae, by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined; *it being [218] usual in those courts to exchange their spiritual censures for round compensation in money (v); perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animae.

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 book (w), 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 be

(t) 2 Inst. 492. 620.

(u) Artic. Cler. Edw. II. c. 4. F. N. B. 53. nishment of whipping has been inflicted in addition to that of imprisonment and finding sureties for good behaviour. 1 Burn. J, 24th edit. 231. 1 East P. C. 406. The 3 Geo. IV. c. 114. inflicts a severer punishment on perBons guilty of assaults, therein particularly described. In cases where the offence more immediately affects the individual, the defendant is sometimes permitted by the court, even after conviction, to speak with the prosecutor, before any judgment is pronounced, and a trivial punishment (generally a fine of a shilling) is inflicted, if the prosecutor declares himself satisfied, post 363, 4. And where in a case of indictment for ill-treating a parish apprentice, a security for the fair expenses of the prosecution had been given by the defendant, after conviction, upon an understanding that the court would abate the period of his Imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the court, and to be considered as at of the punishment suffered by the de

(v) 2 Roll. Rep. 384.
(w) See book III. page 127.

fendant, in expiation of his offen, in addi
tion to the imprisonment inflicted on him. 11
East, 46.

(23) This Act is repealed, so far as relates to laying violent hands on a clerk, by 9 Geo. IV. c. 31: by ý 23 of which, if any person shall arrest any clergyman upon any civil process, while he shall be performing divine service, or shall, with the knowledge of such person, be going to perform the same, or returning from the performance thereof, every such of fender shall be guilty of a misdemeanor; and, being convicted thereof, shall suffer such pu nishment, by fine or imprisonment, or by both, as the court shall award. The 50 Edw. III. c. 5, and 1 Rich. II. c. 15, upon the same subject are als repealed by the new Act. The arres if not on a Sunday, would be good in la Wats. c. 34.

In New-York, clergymen have no such pr vileges as are allowed by the Act 9 Geo. c. 31. above referred to

tore (x), 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 praemunire, and incapacity to hold any office, without any possibility of pardon (y). And we may also add, that by statute 43 Eliz. c. 13. (24) 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 accessaries 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 (2). And indeed (a) there can be no doubt, but that all kinds of crimes of a public nature, all disturbances of the peace, all oppressions, and other misdemeanors whatsoever of a notoriously evil example, may be indicted at the suit of the king.

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*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 he Jewish law. "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 (c). This is unquestionably a very henious 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, imprison ment, and pillory (25), (26). And also the statute 11 & 12 W. III. c. 7,

(z) See page 116.

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

(z) West. Symbol. part 2, page 92. (a) 1 Hawk. P. C. 210.

(24) Repealed by 7 and 8 Geo. IV. c. 27: but see 31 Car. II. c. 2. which prohibits the sending of any British subject to any foreign prison. See also 2 R. S. 692, § 11, and id 664, 28, &c.

(25) Where a child is stolen for the sake of its clothes, it is the same species of felony, as if the clothes were stolen without the child. But it cannot be considered a felony, where a child is stolen and not deprived of its clothes. This crime would in general be an aggravated species of false imprisonment; but, without referring it to that class of offences, stealing child from its parents is an act so shocking and horrid, that it would be considered the, highest misdemeanor, punishable by fine and imprisonment, upon the same principle on which it was decided to be a misdemeanor, to steal a dead body from a grave.

(26) Stealing children was, by 54 Geo. III. c. 101, punishable as in cases of grand larceny but that statute is now repealed by 9 Geo. IV c. 31; by 21 of which, if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain, any child under the age of ten years, with intent to deprive the parent or parents, or any other person ha ring the lawful care or sharge of such child, of the possession of

such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or if any person shall, with any such itent as aforesaid, receive or harbour any such child, know ing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as herein before mentioned: every such offender, and every person counselling, adding or abetting, such offender, shall be guilty of felony; and being convicted thereof, shall be liable to be transported for the term of seven years, or to be imprisoned, with or without hard labour, for any term not exceeding two years, and if a male, to be once, twice, or thrice, publicly or privately whipped. (if the court shall so think fit,) in addition to suca imprisonment. Provided always, that no per son who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of his getting possession of such child, or taking such child out of the possession of the mother, or any other person having the lawful charge thereof."

In New-York, the Act (2 R. S. 665, § 34, is nearly the same as that part of the Engin Act that precedes the part which antice

shouga 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 (27). And thus much for offences that more immediately affect the persons of individuals

CHAPTER 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.

1. Arson, ab ardendo, is the malicious and wilful burning the house or out-house of another man (1). This is an offence of very great malignity

and Lauch 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 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 is more merciful to such as only fire a cottage, or house, standing by itself.

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*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 offence; 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 contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson (b). 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 (c). The burning of a stack of corn was anciently likewise accounted arson (d) (2). 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 chap ter, 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 was kindled with intent to burn another's (e). For by the common law no intention to commit a felony amounts to the same crime; though it does, in some cases, by particular

(a) Ff. 48. 19. 28. 12.
(b) 1 Hal. P. C. 567.
(c) 3 Inst. 69

lage or any building in which may be deposited the papers of any public officer: or any barn, or grist mill: or any manufactory of cotton or woollen goods, or both; or paper, iron, or any other fabric; or any fulling mill, ship, or vessel.

3. The wilful burning of any building, ship, or vessel, or any goods, wares, merchandize, o other chattel, which shall be at the time insured against loss or damage by fire, with intent to prejudice the insurer, whether the same be the property of the incendiary or not.

Arson in the fourth degree, is the wilfully setting fire to or burning,

. In the day time, any building, ship, or ressel, which, if committed in the night, would be arson in the third degree.

2. Either in the day or night, any saw-mill, arding machine, or building containing the

(d) 1 Hawk. P. C. 105.

(e) Cro. Car. 377. 1 Jon. 351

same; any stack of grain of any kind, or o hay, not being the property of the incendiary · any toll bridge or other public bridge.

Arson in the second degree is punishable with imprisonment not less than ten years: in the third, not less than 7 nor more than 10 in the fourth, not more than 7 years. (2 R. S 666, &c.)

(2) This is declared to be arson by 7 and Geo. IV. c. 30, § 17, and is made a capital of fence; and the setting fire to any crops of corn, grain, or pulse, whether standing or cut down or to any woods or heaths, is made felony, pe nishable with transportation for seven years, or imprisonment not exceeding two years. with whipping to male offenders in addition See this section fully set forth, post 245, 19 notis.

statutes (3). However such wilful firing one's own house, in a town, is a high misdemeanor, and punishable by fine, imprisonment, pillory, and per petual sureties for the good behaviour (f) (4). And if a landlord or rever sioner sets fire to his own house, of which another is in possession under a loase from himself, or from those whose estate he hath, it shall be account. ed arson; for during the lease the house is the property of the tenant (g) (5), (6).

2. As to what shall be said to be a burning, so as to amount to [*222] arson, a bare intent, or attempt to do it, by actually setting fire to a house, unless it absolutely burns, does not fall within the description of incendit et combussit; which were words necessary, in the days of law-latin to all indictments of this sort. But the burning and consuming of any part is sufficient; though the fire be afterwards extinguished (h). Also it must be a malicious burning: otherwise it is only a trespass: and therefore no negligence or mischance amounts to it (7). For which reason, though an unqualified person, by shooting with a gun, happens to set fire to the thatch of a house, this sir Matthew Hale determines not to be felony, contrary to the opinion of former writers (i). But by statute 6 Ann. c. 31. any servant, negligently setting fire to a house or out-houses, shall forfeit 100%, or be sent to the house of correction for eighteen months; in the same

(f) 1 Hal. P. C. 568. 1 Hawk. P. C. 106. (g) Fost. 15.

3) See ante, p 196, note 24. (4) It has been decided that an attempt, or preparation, by a man to set fire to his own house in a town, though the fire be never kindled, is a misdemeanor. And that every attempt to commit a felony is a misdemeanor; and, in general, an attempt to commit a misdemeanor is an offence of the same nature. Cald. 397. 6 East, 464. 1 Wils. 139. So also an incitement or solicitation to commit a crime is a misdemeanor. R. v. Higgins, 2 East, 5.

Voluntas reputatur pro facto is still true, both in treason and misdemeanor; but the intention in both must be manifested by an open act. Men cannot be punished by the law for the thoughts of the mind, however wicked they may be even a resolution to commit bigh treason, evidenced only by a confession, without any attempt to carry it into effect, is not punishable by the law of England. The principle of these cases is well illustrated by lord Coke, who, after treating of single combats and affrays, says, "if any subject challenge another to fight, this is also an offence, before any combat be performed, and punishable by law, for quando aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud." 3 Inst. 158. And therefore he who carries the challenge, knowing that it is a challenge, is also guilty of a misdemeanor: and he who designedly at tempts to provoke another fight or to send a challenge, is guilty of the same offence.

(5) It has been determined, that if a tenant set fire to the house of his landlord before the tenancy expires, he is not guilty of arson. Leach. 195, 203.

(6) But these distinctions are now annihiated by 7 and 8 Geo. IV. c. 30, § 2, which enVOL. II

71

(h) 1 Hawk. P. C. 106
(i) 1 Hal. P. C. $39

acts, that if any person shall unlawfully and maliciously set fire to any church or chape., or to any chapel for the religious worship of persons dissenting from the united church of England and Ireland, duly registered or record. ed; or shall unlawfully and maliciously set fire to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malthouse, hop. oast, barn or granary, or to any building of erection used in carrying on any trade or manufacture, or any branch thereof, whether the same, or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, with intent thereby to injure or defraud any person, every such offender shall be guilty of felony, and being convicted there of, shall suffer death as a felon.

(7) The term malice, in this case as in many others, does not merely imply a design to injure the party who is eventually the sufferer, but an evil and mischievous intention, how. ever general, producing damage to individuals. For if a man has a design to burn one house, and by accident the flames destroy another, instead of that against which his contrivance was directed, he will be guilty of maliciously burn. ing the latter. 1 Hale, 569. Hawk. b. 1. c. 39. s. 5. The maxim malitia supṛst ætatem applies to this as well as to other cases; for lord Hale gives an instance of a youth of ten der age being convicted before himself, and executed for this offence, on circumstances af. fording strong evidence of a mischievous discretion. 1 Hale, 569, 570. And the intent to injure may be always inferred from the wrongful act of setting fire, for a man must be sup posed to intend the necessary consequence a his own act. Russ. & Ry. C. C. 207