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lawful malicious act, puts an end to 2. Arson is the malicious and wilful
his own life. This is felony; punish- burning of the house, or out-house, of
ed by ignominious burial, and forfeit- another man. This is felony ; in some
ure of goods and chattels

189 cases within, in others without, clergy 220
& Killing another is, I. Manslaugh. 3. Burglary is the breaking and enter-
ter. II. Murder

190 ing, by night, into a mansion-house ;

9. Manslaughter is the unlawful killing with intent to commit a felony. This

of another; without malice, express is felony, without clergy

222

or implied. This is either, 1.' Vo.

luntary, upon a sudden heat. II. In-

CHAPTER XVII.

voluntary, in the commission of some

anlawful act. Both are felony, but OF OFFENCES AGAINST PRIVATE PRO.

within clergy; except in the case of

PERTY

229 to 247

stabbing

191 1. Crimes, affecting the private property

10. Murder is when a person, of sound of individuals, are, I. Larceny. IÍ.

memory and discretion, unlawfully Malicious mischief. III. Forgery 229

killeth any reasonable creature, in be. 2. Larceny is, I. Simple. II. Mixed, or

ing, and under the king's peace; with compound

229

malice aforethought, either express or 3. Simple larceny is the felonious tak-
implied. This is felony, without cler. ing, and carrying away, of the per-
ky; punished with speedy death, and sonal goods of another. And it is, I.

hanging in chains, or dissection 194 Grand larceny ; being above the value

11. Petit treason, (being and aggravated of twelve pence. Which is felony;

degree of murder), is where the ser-

in some cases within, in others with

vant kills his master, the wife her hus.

out, clergy. II. Petit larceny; to the
band, or the ecclesiastic his superior.

value of twelve pence or under.

Penalty : in men, to be drawn, and Which is also felony, but not capital ;

banged; in women, to be drawn, and being punished with whipping, or

burned

203 transportation

229

4. Mixed, or compound, larceny, is that

CHAPTER XV.

wherein the taking is accompanied

with the aggravation of being, I. From

OF OFFENCES AGAINST THE PERSONS

the house. II. From the persona 239

OP INDIVIDUALS

205 to 219 5. Larcenies from the house, by day or

1. Crimes affecting the persons of indi-

night, are felonies without clergy,

Fiduals, by other corporal injuries not when they are, I. Larcenics, above

amounting to homicide, are, I. May-

twelve pence, from a church ;-or by

hem; and also shooting at another. breaking a tent or booth in a market

Penalties : fine ; imprisonment; judg. or fair, by day or night, the owner or

ment of felony, without clergy. I. his family being therein ;-or by break-

Forcible abduction, and marriage or ing a dwelling house by day, any per-

defilement, of an heiress; which is son being therein;--or from a dwelling-

felony: also, stealing, and deflowering house by day, without breaking, any

or marrying, any woman-child under person therein being put in fear ;-or

the age of sixteeen years ; for which from a dwelling-house by night, with.

the penalty is imprisonment, fine, and out breaking, the owner or his family

temporary forfeiture of her lands. III.

being therein, and put in fear. II.

Rape ; and also carnal knowledge of a Larcenies, of five shillings, by break-

woman-child under the age of ten ing the dwelling-house, shop, or ware-

years.

IV. Buggery, with man or house, by day, though no person be

beast. Both these are felonies, with-

therein ;-or, by privately stealing in
out clergy. V. Assault. VI. Batte-

any shop, warehouse, coach-house, or

ry; especially of clergymen. VII. stable, by day or mght, without break-

Wounding. Penalties, in all three : ing, and though no person be therein.

fine; imprisonment; and other corpo. III. Larcenies, of forty shillings, from

ral punishment. VIII. False impri. a dwelling-house or its out-houses,

sonment.

Penalties : fine ; imprison. without breaking, and though no per-

ment; and (in some atrocious cases)

son be therein

239

ibe pains of premunire, and incapacity 6. Larceny from the person is, I. By

of office or pardon. IX. Kidnapping, privately stealing, from the person o

or, forcibly stealing away the king's another, above the value of twelve

subjects.

Penalty : fine; imprison. pence. II. By robbery; or the seloni-

meat ; and pillory

205-219 ous and forcible taking, from the per-

son of another, goods or money of any

CHAPTER XVI.

value, by putting him in fear. These

are both felonies without clergy. An

OF OFFENCES AGAINST THE Habita-

attempt to rob is also felony

241

TIONS OF INDIVIDUALS

220 to 222 7. Malicious mischief, by destroying

1. Crimes, affecting the habitations of

dikes, goods, cattle, ships, garments,

individuals, are, I. Arson. II. Bur.

fish-ponds, trees, woods, churches,

glary

220 chapels, meeting-houses, houses, out-

VOL. II

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houses, corn, hay, straw, sea or river the lord steward, &c. by statute of
banks, hop-binds, coal-mines, (or en. Henry VIII.

III. The university
gines thereunto belonging), or any

courts

275-277
fences for inclosures by act of Parlia-
nent, is felony, and, in most cases,

CHAPTER XX
without benefit of clergy

243

8. Forgery is the fraudulent making or OF SUMMARY CONVICTIONS 280 to 288

alteration of a writing, in prejudice of 1. Proceedings in criminal courts are, I.

another's right. Penalties : fine; im. Summary. II. Regular

280
prisonment; pillory ; loss of nose and 2. Suminary proceedings are such, where-
ears; forfeiture ; judgment of felony, by a man may be convicted of divers
without clergy

247 offences, without any formal process

or jury, at the discretion of the judge
CHAPTER XVIII.

or judges appointed by act of parlia.
ment, or common law

280
OF THE MEANS OF PREVENTING OF. 3. Such are, I. Trials of offences and
FENCES

251 to 256 frauds against the laws of excise and

1. Crimes and misdemeanors may be

other branches of the king's revenue.

prevented, by compelling suspected II. Convictions before justices of the

persons to give security : which is ef.

peace npon a variety of minute offen.

fected by binding them in a condi- ces chiefly against the public police.

tional recognizance to the king, taken III. Attachments for contempts to the

in court, or by a magistrate out of superior courts of justice

281-288

court

251

2. These recognizances may be condi.

'

ces.

CHAPTER XXI.
tioned, I. To keep the peace. II. To
be of the good behaviour
252 OF ARRESTS

289 to 295

3. They may be taken by any justice or 1. Regular proceedings, in the courts of

conservator of the peace, at his own

common law, are, I. Arrest. II. Com-

discretion; or, at the request of such mitment and bail. III. Prosecution.

as are entitled to demnand the same 253 IV. Process. V. Arraignment, and

4. All persons, who have given suffi.

its incidents. VI. Plea and issue.

cient cause to apprehend an intended

VII. Trial and conviction. VIII. Cler-

breach of the peace, may be bound gy. IX. Judgment, and its consequen-

over to keep the peace; and all those

X. Reversal of judgment. XI.

that be not of good fame, may be bound Reprieve or pardon. XII. Execution 289

to the good behaviour; and may, upon

2. An arrest is the apprehending, or re-

refusal in either case, be committed to straining, of one's person; in order to

gaol

256 be forthcoming to answer a crime,

whereof one is accused or suspected 289

CHAPTER XIX.

3. This may be done, I. By warrant. II.

By an officer, without warrant. III.

OF COURTS OF A CRIMINAL JRISDIC.

By a private person, without warrant.

258 to 277 IV. By hue and cry

289-295

1. In the method of punishment may be

considered, I. The several courts of

CHAPTER XXII.

criminal jurisdiction. II. The seve.

ral proceedings therein

258 OF COMMITMENT AND BAIL 296 to 299

2. The criminal courts are, I. Those of 1. Commitment is the confinement of

a public and general jurisdiction one's person in prison for safe custody,

throughout the realm. II. Those of a by warrant from proper authority ; un-

private and special jurisdiction 258 less, in bailable ofiences, he puts in

3. Public criminal courts are, I. The sufficient bail, or security for his fu-

high court of parliament; which pro.

ture appearance

296

ceeds by impeachment. II. The court 2. The magistrate is bound to take rea-

of the lord high steward; and the court

sonable bail, if offered ; unless the of.

of the king in full parliament: for the

fender be not bailable

296

trial of capitally indicted peers. III.

3. Such are, I. Persons accused of trea-

The court of King's Bench. IV. The son; or, II. Of murder; or, III. Of

court of chivalry. V. The court of manslaughter, by indictment; or if

admiralty, under the king's commis. the prisoner was clearly the slayer.

sion. VI. The courts of oyer and ter-

IV. 'Prison-breakers, when committed

miner and general gaol-delivery. VII. for felony. V. Outlaws. VI. Those

The court of quarter-sessions of the who have abjured the realm.

VII.

peace. VIII. The sheriff's tourn. IX. Approvers, and appellees. VIII. Per-

The court-leet. X. The court of the

sons taken with the mainour. IX.

coroner. XI. The court of the clerk

Persons accused of arson. X. Ex.

of the market
258-275 communicated persons

298

4. Private criminal courts are, I. The 4. The magistrate ray, at his discretion,

court of the lord steward, &c. by sta- admit or not :dmit io bail, persons not
tute of Henry VII. II. The court of of good fame, charged with other selo.

TION

Page nies, whether as principals or as accessories

299 5. If they be of good fame, he is bound to admit them to bail

299 & The court of King's Bench, or its

judges in time of vacation, may bail in any case whatsoever

299

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECU.
TION

301 to 312 1. Prosecution, or the manner of ac

cusing 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

301 2. A presentment is the notice taken by

a grand jury of any offence, from their own knowledge or observation

301 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 ; ex. pressing, with sufficient certainty, the person, time, place, and offence 302 4. Ad information is, I. At the suit of

the king and a subject, upon penal statutes. II. At the suit of the king only. Either, l. Field by the attorney-general ex officio, for such misde. meanors as affect the king's person or government: or, 2. Filed by the mas. ter of the crown-office (with leare of the court of King's Bench) at the relation of some private subject, for other gross and notorious misdemeanors. 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 307-312 5. An appeal is an accusation or suit,

broughi by one private subject against another, for larceny, rape, mayhom, arson, or bomicide : which the king cannot discharge or pardon, but the party alone can release

312

Page prisoner to the bar of the court, to an

swer the matter of the indictment 322 2. Incident hereunto are, I. The stand

ing mute of the prisoner; for which,
in petit treason, and selonies of death,
he shall undergo the peine for et dure.
II. His confession: which is either
simple; or by way

of
approvement

324-331

CHAPTER XXVI.

OF PLEA, AND ISSUE

332 to 341 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 Ist, auierfoits acquit ; 2dly, auter foils 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.

OF TRIAL, AND CONVICTION 342 to 363 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. 11. Challenges : İst, for cause; 2dly, peremptory. III. Tales de circumstanlibus. 'IVThe oath of the jury. V. The evidence. VI. The verdict, either general or special

350-361 3. Conviction, is when the prisoner

pleads, or is found, guilty : where. upon, in felonies, the prosecutor is entiiled to, I. His expenses.

II. Res. titution of his goods

361-363

CHAPTER XXVIII.

CHAPTER XXIV.

OP Process UPON AX INDICTMENT

318 to 320 1. Process to bring in an offender, when

indicted in his absence, is, in misdemeanors, 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 infe.
rior jurisdiction, by writ of certiorari
facias : and cognizance must be claim-
ed in places of exclusive jurisdiction 320

CHAPTER XXV.

OF THE BENEFIT OF CLERGY 365 to 374
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

365 2. It is an exemption of the clergy from

any other secular punishment for felo-
ny, than imprisonment for a year, at
the court's discretion; and it is ex-
tended 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

371 3. All felonies are entitled to the benefit

of clergy, except such as are now oust.
ed by particular statutes

372 4. Felons, on receiving the benefit of

clergy, (though they forfeit their goods
to the crown), are discharged of all

Op ARRAIGNMENT, AND ITS INCI.
DENTS

322-331 1. Arraignment, is the calling of the

Page

Page clergyable felonies before committed, and restored in all capacities and credits

374

ed, I. Without a writ of error; for matter dehors the record. II. By writ of error; for mistakes in the judgment, or record. III. By act of Parliainent; for favour

390-392 3. When an outlawry is reversed, the

party is restored to the same plight, as if he had appeared upon the capias. When a judgment on conviction is reversed, the party stands as if never accused

292

CHAPTER XXXI.

OF REPRIEVE AND PARDON 394 to 398 1. A reprieve is a temporary suspension

of the judgment, 1. 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

394-396 2. A pardon is a permanent avoider of

the judgment by the king's majesty in offences against his crown and dig. nity ; drawn in due form of law, al. lowed in open court, and thereby mak. ing the offender a new man

396 3. The king cannot pardon, I. Imprison.

ment of ihe 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

398

CHAPTER XXXII.

403

403

CHAPTER XXIX.

OF JUDGMENT, AND ITS CONSEQUEN-
CES

375 to 389 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

375 2. Attainder of a criminal, is the imme.

diate consequence, I. Of having judg. ment of death pronounced upon him.

II. Of outlawry for a capital offence 380 3. The consequences of attainder are,

I. Forfeiture to the king. II. Corruption of blood

381 4. Forfeiture to the king is, I. Or 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-damed contempts of

the king's courts, and flight 381-388 5. Corruption of blood is an atter ex

tinction of all inheritable quality therein: so that, after the king's forfeiture is first satisfied, the criminal's lands escheat to the lord of the sce; and he can never afterwards inherit, be inhe. rited, or have any inheritance derived through him

388-9 CHAPTER XXX.

OF REVERSAL OF JUDGMENT 390 to 392 1. Judgments, and their consequences,

may be avoided, I. By falsifying, or reversing, the attainder. II. By reprieve, or pardon

390 2. Attainders may be falsified, or revers

OF EXECUTION 1. Execution is the completion of hu

man punishment, and must be strict. ly performed in the manner which the

law directs 2. The warrant for execution is some

times 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.

OF 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 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 (a) Introd. 92.

Cic. 11. Philipp. 12. Bract. I. 1, c. 3. (6) Sanctio justa, jubens honesta, et prohibens

contraria,

(c) Book I. ch. 1.

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