lawful malicious act, puts an end to 2. Arson is the malicious and wilful 189 cases within, in others without, clergy 220 190 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 or implied. This is either, 1.' Vo. luntary, upon a sudden heat. II. In- voluntary, in the commission of some anlawful act. Both are felony, but OF OFFENCES AGAINST PRIVATE PRO. within clergy; except in the case of 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 malice aforethought, either express or 3. Simple larceny is the felonious tak- 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 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 4. Mixed, or compound, larceny, is that wherein the taking is accompanied with the aggravation of being, I. From OF OFFENCES AGAINST THE PERSONS the house. II. From the persona 239 205 to 219 5. Larcenies from the house, by day or night, are felonies without clergy, twelve pence, from a church ;-or by 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- IV. Buggery, with man or house, by day, though no person be beast. Both these are felonies, with- therein ;-or, by privately stealing in 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, Penalties : fine ; imprison. without breaking, and though no per- ment; and (in some atrocious cases) 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 Penalty : fine; imprison. pence. II. By robbery; or the seloni- 205-219 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 OF OFFENCES AGAINST THE Habita- 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, 220 chapels, meeting-houses, houses, out- 3 Page Page III. The university courts 275-277 CHAPTER XX 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 280 247 offences, without any formal process or jury, at the discretion of the judge or judges appointed by act of parlia. 280 251 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 2. These recognizances may be condi. ' ces. CHAPTER XXI. 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 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 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. 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, of 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 CHAPTER XXV. OF THE BENEFIT OF CLERGY 365 to 374 originally derived from the usurped 365 2. It is an exemption of the clergy from any other secular punishment for felo- 371 3. All felonies are entitled to the benefit of clergy, except such as are now oust. 372 4. Felons, on receiving the benefit of clergy, (though they forfeit their goods Op ARRAIGNMENT, AND ITS INCI. 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- 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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