guilty of such brutal behavior 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 anima (for the amendment and health of his soul), by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined; *it being usual in those courts to exchange their spiritual censures for a round compensation in money; (v) perhaps [*218] because poverty is generally esteemed by the moralists the best medicine pro salute animæ.1 VIII. False imprisonment.-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 before, (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 pramunire, and incapacity to hold any office, without any possibility of pardon. (3) And we may also add, that by statute 43 Eliz. c. 13, 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 accessories 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. *IX. Kidnapping. The other remaining offence, that of [*219] 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." (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 (v) 2 Roll. Rep. 384. (y) Stat. 31 Car. II, c. 2. (b) Exod. xxi, 16. (w) See book III, page 127. (x) See page 116. (a) 2 Hawk. P. C. 210. 1The punishment is now imprisonment not exceeding two years. Statute 24 and 25 Vic., c. 100, § 36. death. (c) This is unquestionably a very heinous 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. (d) And also the statute 11 and 12 Wm. III, c. 7, 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. And thus much for offences that more immediately affect the persons of individuals. 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 (from burning), is the malicious and wilful burning the house or outhouse of another man. This is an offence of very great malignity, and much 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 reasons the civil law (a) punishes with death such as maliciously set fire to houses in towns, and contiguous to other; but is more merciful to such as only fire a cottage, or house, standing by itself." (c) Ff. 48, 15, 1. (a) Ff. 48, 19, 28, § 12. (d) Raym. 474. 2 Show. 221. Skin. 46. Comb. 10. 1[The victim has a right to slay his captor to regain his liberty. The Amistad, 15 Pet. 518.] 2 See statute 24 and 25 Vic., c. 100, for the punishment of abduction and kidnapping. Also, statute 17 and 18 Vic., c. 104, for the punishment of willfully and wrongfully leaving persons abroad. The English statutes on this subject were revised and consolidated in 24 and 25 Vic., c. 97. Section 1 makes it felony, punishable with penal servitude for life, or for any term not less than three years, or with imprisonment not more than two years, with or without whipping, if the offender be a male over sixteen years of age, to set fire, unlawfully and ma *Our English law also distinguishes with much accuracy this crime. upon 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. And therefore we will inquire, first, what [*221] 1. The subject of arson.- Not only the bare dwelling-house, but all outhouses that are parcel thereof, though not contiguous thereto, or 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) 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 chapter, and have made the punishment of wilful burning equally extensive as the mischief. The offence of arson (strictly so called) may be committed by willfully 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 statutes. However, such wilful firing one's own house, in a town, is a high misdemeanor, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour. (f) And if a landlord or reversioner sets fire to his own house, of which another is in possession under a lease from himself, or from those whose estate he hath, it shall be accounted arson; for during the lease the house is the property of the tenant. (g) (b) 1 Hal. P. C. 567. (c) 3 Inst. 67. (e) Cro. Car. 377. 1 Jon. 351. (f) 1 Hal. liciously, to any church, chapel, meeting-house or other place of divine worship. Section 2 imposes the like punishment for setting fire to a dwelling house, any person being therein. Section 3 imposes the like punishment for setting fire to any house, stable, coach-house, outhouse, warehouse, office, shop, mill, malt-house, hop-oast, barn, storehouse, granary, hovel, shed, or fold, or to any farm building, or to any building or erection used in farming land, or in carrying on any trade or manufacture, whether in possession of the offender or not, with intent to injure or defraud any person. And by subsequent sections the unlawfully and maliciously setting fire to buildings belonging or appertaining to railways, ports, docks, harbors, or canals, or to public buildings, or "to any buildings other than such as are in this act before mentioned," or to any thing in, against or under a build (d) 1 Hawk. P. C. 105. 1 See 2 Bish. Cr. L., 7th ed., § 13. It is usual to provide by statute that the burning one's own house, with intent to defraud, shall be felony. "House," it seems, imports a dwelling house. Commonwealth v. Posey, 4 Čall, 109; S. C., 2 Am. Dec. 560. *2. The burning. As to what shall be said to be a burn [*222] ing, so as to amount to 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 (he hath burned and consumed); 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. 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. (?) But by statute 6 Ann. c. 31, any servant negligently setting fire to a house or outhouses shall forfeit 100%. or be sent to the house of correction for eighteen months; in the same manner as the Roman law directed, "eos, qui negligenter ignes apud se habuerint, fustibus vel flagellis cædi" (those who have fire carelessly about them shall be beaten with whips or sticks). (k) 3. The punishment of arson was death by our ancient Saxon laws. (1) And in the reign of Edward the First this sentence was executed by a kind of lex talionis (law of retaliation); for the incendiaries were burnt to death: (m) as they were also by the Gothic constitutions. (n) The statute 8 Hen. VI, c. 6, made the wilful burning of houses, under some special circumstances therein mentioned, amount to the crime of high treason. But it was again reduced to felony by the general acts of Edward VI, and Queen Mary; and now the punishment of all capital felonies is uniform, namely, by hanging. The offence of arson was denied the benefit of clergy by statute 23 Hen. VIII, c. 1, but that statute was repealed by 1 Edward VI, c. 12, and arson was afterwards held to be ousted of clergy, with respect to the principal offender, only by inference and deduction from To complete the offense, there must be an actual burning of some part of the building. Com. v. VanSchaack, 16 Mass. 105; People v. Butler, 16 Johns. 203; but to set fire to a building was a misdemeanor at common law. R. v. Clayton, 1 C. & K. 128; Com. v. Flynn, 3 Cush. 525. It is a sufficient burning if the fibre of the wood is destroyed. People v. Haggerty, 46 Cal. 354. So, if a floor is charred to the depth of half an inch, as this presupposes a burning. State v. Sandy, 3 Ired. 570. It is not necessary that the flame should be visible; as where a thatched roof was fired so that it smoked and was in part destroyed, but did not blaze. R. v. Stallion, 1 Moo. 398. Enough if the burnt surface has been at a red heat. R. v. Parker, 9 C. & P. 45; but not if only scorched. R. v. Russell, 1 C. & M. 541. If one fires his own house, standing (k) Ff. 1, 15, 4. so near other houses that the latter the statute 4 and 5 P. and M. c. 4, *which expressly denied it to the accessories before the fact; (o) though now it is [*223] expressly denied to the principal in all cases within the statute 9 Geo. I, c. 22.1 II. Burglary, or nocturnal housebreaking, burgi latrocinium, which by our ancient law was called hamesecken, as it is in Scotland to this day, has always been looked upon as a very heinous offence; not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation which every individual might acquire even in a state of nature; an invasion, which in such a state would be sure to be punished with death, unless the assailant were the stronger. But in civil society the laws also come in to the assistance of the weaker party; and, besides that they leave him this. natural right of killing the aggressor, if he can (as was shown in a former chapter), (p) they also protect and avenge him, in case the might of the assailant is too powerful. And the law of England has so particular and tender a regard to the immunity of a man's house, that it styles it his castle, and will never suffer it to be violated with impunity; agreeing herein with the sentiments of ancient Rome, as expressed in the words of Tully; (q) "quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?" (for what is more sacred, what more inviolable, than the house of every citizen?) For this reason no outward doors can in general be broken open to execute any civil process; though, in criminal cases, the public safety supersedes the private. Hence also, in part, arises the animadversion of the law upon eaves-droppers, nuisancers and incendiaries: and to this principle it must be assigned, that a man may assemble people together lawfully (at least if they do not exceed eleven) without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case. (r)? *The definition of a burglar, as given us by Sir Edward Coke, (8) is "he that by night breaketh and entereth into a [*224] mansion-house, with intent to commit a felony." In this definition there are four things to be considered; the time, the place, the manner, and the intent. 1. The time must be by night, and not by day: for in the day time there is no burglary. We have seen, (t) in the case of justifiable homicide, how much more heinous all laws made an attack by night, rather than by day, allowing the party attacked by night to kill the assailant with impunity. As to what is reckoned night, and what day, for this purpose: anciently the day was accounted to begin only at sun-rising, and to end immediately upon sun-set; (o) 11 Rep. 35. 2 Hal. P. C. 346, 347. Fost. 336. 1The punishment of arson is no longer capital in England. 2 The English statute for the punishment of this offense is 24 and 25 Vic., c. 96. The penalty in the discretion of the court is penal servitude for life, or (p) See page 180. (t) See pages 180, 181. (q) pro domo, 41. for any term not less than three years, or imprisonment for any term not exceeding two years, with or without hard labor, and with or without solitary confinement. |