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given in evidence, since the nature of the case admits frequently of no better proof. But it is now settled, [Brazier's case, before the twelve judges, P. 19 G. III.) that no hearsay evidence can be given of the declaration of a child who hath not capacity to be sworn, nor can such child be examined in court without oath : and that there is no determinate age, at which the oath of a child ought either to be admitted or rejected. Yet, where the evidence of children is admitted, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact ; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. There may be therefore, in many cases of this nature, witnesses who are competent, that is, who may be admitted to be heard ; and yet, after being heard, may prove not to be credible, or such as the jury is bound to believe. For one excellence of the trial by jury is, that the jury are triers of the credit of the witnesses, as well as of the truth of the fact.

*“ It is true, says this learned judge (k), that rape is a most [*215] detestable crime, and therefore oùght severely and impartially to be punished with death ; but it must be remembered that it is an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent.” He then relates two very extraordinary cases of malicious prosecution for this crime, that had happened within his own observation ; and concludes thus : " I mention these instances, that we may be the more cautions upon trials of offences of this nature, wherein the court and jury may with so much ease be imposed upon, without great care and vigilance ; the heinousness of the offence many times transporting the judge and jury with so much indignation that they are overhastily carried on to the conviction of the person accused thereof, by the confident testimony of sometimes false and malicious witnesses."

IV. What has been here observed, especially with regard to the man-, ner of proof, which ought to be more clear in proportion as the crime is the more detestable, may be applied to another offence, of a still deeper malignity ; the infamous crime against nature, committed either with man or beast. A crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out : for, if false, it deserves a punishment inferior only to that of the crime itself.

I will not act so disagreeable a part, to my readers as well as myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature (18), (10). It will be more eligible to imitate in this

(k) I Hal. P. C. 635. (18) As to the decisions, see 1 East P. C. kind or with any animal, shall suffer death as 480. 437. Bac. Ab. Sodomy. Hawk. b. 1. c. a felon. And, by 9 18, it is directed, that the 4. 1 Hale, 669, 679. Com. Dig. Justices, s. proof of penetration only shall be sufficient 4. Russ. & Ry. C. C. 331. If committed on for the purpose of conviction. a boy under fourteen, it is felony in the agent In New York the crime is punishable by only I Hale, 470. 3 Co. Inst. 59. As to imprisonment not more than 10 years. (2 R. sending threatening letters, charging a party S. 689, 0 20 :) our statute, 2 R. S. 735, 9 18, is with this offence, see ante, 144, note 3. As similar to the 18th section of the English Act, to offence of soliciting another to commit the 9 Geo. IV. c. 31; in the description of the of offence, see 2 East, 5.

fence, however, our Act uses the world beast, (19) By stat. 9 Geo. IV. c. 31, § 15, every not animal. See 1 Russel 568, as to the word person guilty of this offence, either with man- beast.

a

respect the delicacy of our English law, which treats it, in its very indict

ments, as a crime not fit to be named: "peccatum illud horribile, inter [*216] christianos non nominandum (k).” A taciturnity observed *like

wise by the edict of Constantius and Constans (1); "ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ullore, ut exqusitis poenis subdantur infames, qui sunt, vel qui

futuri sunt rei." Which leads me to add a word concerning its punishment. This the voice of nature and of reason,

and the express law of God (m), determined to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven ; so that this is an universal, not merely a provincial precept. And our ancient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death (n); ihough Fleta (6) says they should be buried alive ; either of which punishments was indifferently used for this crime among the ancient Goths (p). But now the general punishment of all felonies is the same, namely, by hanging; and this offence (being in the times of popery only subject to ecclesiastical censures) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6. revived and confirmed by 5 Eliz. c. 17. And the rule of law herein is, . that if both are arrived at years of discretion, agentes et consentientes pari poenae plectantur ().

These are all the felonious offences more immediately against the personal security of the subject. The inferior offences or misdemeanors, that fall under this head, are assaults, batteries, wounding, false imprisonment, and kidnapping.

V. VI. VII. With regard to the nature of the three first of these offences in general, I have nothing further to add to what has already been observed in the preceding book of these commentaries (r); when we consider them as private wrongs, or civil injuries, for which a satisfaction or

remedy is given to the party aggrieved. But, taken in a public [*217] light as a "breach of the king's peace, an affront to his govern

ment, and a damage done to his subjects, they are also indictable and punishable with fines and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious design (s) (20). As in case of an assault with an intent to murder, or with an intent to commit either of the crimes last spoken of (21); for which intentional assaults, in the two last cases, indictments are much more usual than for the absolute perpetration of the facts themselves, on account of the difficulty of proof; or, when both parties are consenting to an unna. tural attempt, it is usual not to charge any assault ; but that one of them laid hands on the other with intent to commit, and that the other permitted the same with intent to suffer, the commission of the abominable crime before mentioned. And, in all these cases, besides heavy fine and imprisonment, it is usual to award judgment of the pillorv (22).

(k) See in Rot. Parl. 50 Edw. III. n. 58, a complaint, that a Lombard did commit the sin, “ that (p) Stiernh. de jure Goth. I. 3, c. 2. was not to be named." (12 Rep. 37

(9) 3 Inst. 50.

(8) 1 Hawk. P. C. 65. (n) Britt. c. 9.

(20) See 9 Geo. IV. c. 31, 9. 24 to 29 : pre- (21) See ante, note 24. p. 196. scribing the punishment of particular assaults, (22) The punishment of pillory is now taken and the summary proceeding before two jus- away by the 56 Geo. III. c. 138. In cases of ticos in case of common assaults.

assaults of a very aggravated nature, the pu..

(0) I. 1, c. 37.

(T) See book III. page 120.

(1) Cod. 9. 9. 31.
(m) Levit. xx. 13. 15.

There is also one species of battery, more atrocious and penal than the rest, 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 before 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 otherwise to sue in any spiritual court for civil damages for the battery, falls within the danger of praemunire (c). But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commutation 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 battery ; 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 a 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 civił 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(1) 2 Inst. 492. 620.

(v) 2 Roll. Rep. 384. (u) Artic. Cler. Edv. II. c. 4. F. N. B. 53.

(n) See book ill. pago 127. nishment of whipping bas been inflicted in fendant, in expiation of his offence, in addi. addition to that of imprisonment and finding tion to the imprisonment inflicted on him. 11 sureties for good behaviour. I Burn. J, 24th East, 46. edit. 231. I East P. C. 406. The 3 Gen. IV. (23) This Act is repealed, so far as relates c. 114. inflicts a severer punishment on per- tn laying violat hands on a clerk, by 9 Geo. sons guilty of assaults, therein particularly IV.c.31: by 0 23 of which, if any person shall described. In cases where the offence more arrest any clergyman upon any civil process, immediately affects the individual, the defend. while he shall be performing divine service, ant is sometimes permitted by the court, even or shall, with the knowledge of such person, after conviction, to speak with the prosecutor, be going to perform the same, or returning before any judgment is pronounced, and a tri- from the performance thereof, every such of. vial penishment (generally a fine of a shil. fender shall be guilty of a misdemeanor ; and, ling) is inflicted, if the prosecutor declares being convicted thereof, shall suffer such pu. himself satisfied, post 363, 4. And where in nishment, by fine or imprisonment, or by both, a case of indictment for ill-treating a parish as the court shall award. The 50 Edw. III.c. apprentice, a security for the fair expenses of 5, and i Rich. II. c. 15, upon the same subject, the prosecution had been given by the defend- are also repealed by the new Act. The arrest, ant, after conviction, upon an understanding if not on a Sunday, would be good in law. that the court would abate ibe period of his Wats. c. 34. imprisonment, the security was held to be In New York, clergymen have no such pri. good, upon the ground that it was given with vileges as are allowed by the Act 9 Geo. Iv. the sanction of the court, and to be considered c. 31. above referred to. as part of the punishment suffered by the de

fore (2), 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. [*219] *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 the 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 (6)” 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, imprisonment, and pillory (25), (26). And also the statute 11 & 12 W. III. c. 7, (+) See page 116.

(c) F. 48. 15. 1. (3) West. Symbol. part 2, page 92.

(d) Raym. 474. 2 Shew. 221. Skin. 47. Comb.

(6) Exod. xxi. 16.

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

(a) I Hawk. P. c. 210.

10.

(24) Repealed by 7 and 8 Geo. IV. c. 27: such child, or with intent to steal any article but see 31 Car. II. c. 2. which prohibits the upon or about the person of such child, to sending of any British subject to any foreign whomsoever such article may belong; or if prison. See also 2 R. S. 692, § 11, and id. any person shall, with any such intent as afore664, 0 28, &c.

said, receive or harbour any such child, know(25) Where a child is stolen for the sake of ing the same to have been, by force or fraud, its clothes, it is the same species of felony, as led, taken, decoyed, enticed away, or detain. if the clothes were stolen without the child. ed as herein before mentioned: every such But it cannot be considered a felony, where a offender, and every person counselling, adding *child is stolen and not deprived of its clothes. or abetting, snch offender, shall be guilty of

This crime would in general be an aggravated felony; and being convicted thereof, shall be species of false imprisonment, but, without liable to be transported for the term of seven referring it to that class of offences, stealing years, or to be imprisoned, with or without a child from its parents is an act so shocking hard labour, for any term not exceeding two and horrid, that it would be considered the years, and if a male, to be once, lwice, or highest misdemeanor, punishable by fine and thrice, publicly or privately whipped, (if the imprisonment, upon the same principle on court shall so think fit,) in addition to such which it was decided to be a misdemeanor, to imprisonment. Provided always, that no per. steal a dead body from a grave.

son who shall have claimed to be the father of (26) Stealing children was, by 54 Geo. III. an illegitimate child, or to have any right to c. 101, punishable as in cases of grand larce. the possession of such child, shall be liable to ny: but that statute is now repealed by 9 Geo. be prosecuted by virtue hereof, on account of IV. c. 31 ; by 0.21 of which, if any person his getting possession of such child, or taking shall maliciously, either by force or fraud, such child out of the possession of the molead or take away, or decoy or entice away, ther, or any other person having the lawful or detain, any child under the age of ten years, charge thereof." with intent to deprive the parent or parents, In New York, the Act (2 R. S. 665, $ 34,) or any other person having the lawful care or is nearly the same as that part of the English charge of such child, of the possession of Act that precedes the part which notices the

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though 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, intent to steal clothes, the rest of the Act is ry, for the examination of witnesses abroad; not in ours: the punishment may be imprison. and the depositions taken under the same, ment not exceding 10 years, and a fine not shall be received in evidence on the trial of exceeding 500 dollars.

every such indictment or information. So Unlawfully and forcibly seizing and confin. inuch of the 11 and 12 W. III. c. 7, and of the ing another, or inveigling or kidnapping him 58 G. III, c. 38, as related to this subject, is with intent to cause himn to be secretly con- repealed by the 9 G. IV.c. 31. fined or imprisoned in this state against his (1) In New-York, arson in the first degree will, or to cause him to be sent out of the state is punished with death. It is the wilfully setagainst his will, or to be sold as a slave, or in ting fire to, or burning, in the night time, a any way held to service against his will, is dwelling-house in which there shall be at the punishable by imprisonment of the principal time some human being: and every house, for not more than 10 years; and of any acces. prison, jail, or other edifice, which shall have sary after the fact, for not more than 6 years, been usually occupied by persons lodging and by a fine on such accessary of not more therein at night, shall be deemed a dwelling. than 500 dollars. (2 R. S. 664, &c.). Selling house of any person so lodging therein. But any person of colour, who has been inveigled no warehouse, barn, shed, or other out-house, or kidnapped from this state to another, is pu. is to be deemed a dwelling, or part of a dwelnishable by imprisonment not exceeding 10 ling, unless it be joined to, immediately conyears and fine not exceeding 1,000 dollars. nected with, and part of, a dwelling. (ŽR. S. (Id. 665, 932.) See ib. as to venue.

657; Ø 9, 10.) (27) By 9 Geo. IV. c. 31, $30, if any mas. Arson in the second degree, is the wilfully ter of a merchant vessel shall, during his be- setting fire to, or burning, ing a broad, force any man on shore, or wilfully 1. Any inhabited dwelling-house in the day leave him behind in any of his majesty's colo. time, which, if committed in the night, would nies or elsewhere, or shall refuse to bring be arson in the first degree. home with him again all such of the men whom 2. Any building in the night, not being the he carried out with him, as are in a condition subject of arson in the first degree, but ad. to return when he shall be ready to proceed on joining to, or within the curtilage of, any inhis homeward-bound voyage, every such mas. habited dwelling house, so that such house ter shall be guilty of a misdemeanor, and be shall be endangered by such firing. ing lawsully convicted thereof, shall be impri- Arson in the third degree, is the wilfully soned for such term as the court shall award; setting fire to, or burning, and all such offences may be prosecuted by. 1. In the day time any building, which, if indictment or by information, at the suit of his committed in the night time, would be arson majesty's attorney general, in the court of in the second degree. King's Bench, and may be alleged in the in. 2. In the night time, the house of another dictment or information to have been commit- not the subject of arson in the first or second ted at Westminster, in the county of Middle- degree: or any house of public worship or sex: and the said court is hereby authorized school-house: or any public building belonging to issue one or more commissions, if necessa- to the state, or to any county, city, town, or vil.