Commentaries on the Laws of England: In Four Books - William Blackstone - Google-kirjat

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OF OFFENCES AGAINST THE PUBLIC PEACE,

offences against the public peace, are,

1. riotous assembling of twelve or more persons and not dispersing on procla-

2. unlawful hunting by night or in disguise,.

3. sending letters demanding money, or threatening violence, &c.,..

4. destroying locks, flood-gates, &c.,

5. affrays, or the fighting of two or more persons in a public place to the terror

6. riots, routs and unlawful assemblies, the last of which is where three or

more assemble to do an unlawful act,.

the second is where three or more meet to do an unlawful act upon a

common quarrel, and make some advances towards it,.........

a riot is where three or more actually do an unlawful act of violence,... 146

7. tumultucus petitioning,

10. spreading false news in some cases,

8. forcible entry or detainer, which is the violently taking or keeping posses-

sion of lands and tenements, with menaces, force and arms, and without

authority of law,.....

9. riding or going armed with dangerous or unusual weapons,

11. false and pretended prophecies with intent to disturb the peace,.

12. challenges to fight duels, or bearing such challenges,.....

13. libels, which are malicious defamations of any person, made public by print-

ing, writing, signs or pictures, in order to anger him, or expose him to

public hatred, contempt and ridicule,...

punishing which does not abridge the liberty of the press,

which consists in laying no previous restraints upon publications, and

not in freedom from censure for criminal publications,.

OF OFFENCES AGAINST PUBLIC TRADE,.....

offences against public trade are:

1. owling, or transporting sheep or wool out of the kingdom, to the detri-

ment of its staple manufacture,....

2. Smuggling, or the offence of importing goods without paying the duties

imposed thereon,...

3. fraudulent bankruptcy,....

4. usury, or the unlawful contract on a loan of money to receive the same

again with exorbitant increase,

5. cheating, breaking the assize of bread, selling by false weights and meas-
ures, &c.,

157

or defrauding another of any thing of value by color of any false token,

letter or pretence,..

6. forestalling the market,

7. regrating, or buying and selling again in the same market or near the same, 158

8. engrossing, or getting into one's possession, or buying up large quantities

of corn, &c., to sell again,.

9. monopolies, which are a license or privilege allowed by the king for the sole

buying and selling, making, working, or using of any thing,......... 159

now void, and the monopolist punishable, except in case of patents for

inventions, &c.,....

combinations to raise the price of provisions, &c., are also punishable,.. 159
10. exercising a trade without having previously served as an apprentice,..... 168
11. enticing or seducing artisans to go abroad,..

160

OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY, 161-174

Offences against the public health are:

1. disregarding lawful orders in time of plague, or quarantine regulations,... 161

2. selling unwholsome provisions, or adulterating wine,.

offences against the public police and economy are:

1. clandestine or irregular marriages,

2. bigamy, or (more properly) polygamy, or the having a plurality of wives

OF OFFENCES AGAINST THE PUBLIC HEALTH, &c.-(continued.)

in which case the marriages, except the first, are mere nullities,....... 163

in three cases, namely: I. where the party had been continually abroad

for seven years, or, 2. was not known to be living during that time; 3.

was divorced a mensa et thoro: though the second marriage is void, it

is not a felony,.

in other cases, namely, 1. where there is a divorce a vinculo, and 2. where

the first marriage was voidable for want of age, and was afterwards

not agreed to, the second marriage is valid,..........

3. idle soldiers and mariners wandering about the realm,.

4. gypsies remaining in the kingdom, &c.,

5 common nuisances, which are either the doing of a thing to the annoyance

of all the king's subjects, or neglecting to do a thing the common good

as obstructions to the highways, bridges, or public rivers,

offensive trades and manufactures,....

disorderly inns, bawdy-houses, gaming-houses, &c.,.

lotteries, fire works, &c.,.....

eavesdroppers and common scolds,

6. being idle and disorderly, rogues and vagabonds,.

7. luxury, the laws against which are generally repealed,.

8. gaming, which is made punishable by penalties, and the securities obtained

thereby are void,...

crimes against persons are principally, 1. against their persons; 2 against their

habitations; 3. against their property,

of crimes injurious to the persons of subjects, the first is homicide, or the killing

of a human creature,.

1. such as is owing to unavoidable necessity, without any will, intention, or

desire, inadvertence or negligence in the party killing,..

as when done by command of the law,.

or to prevent some atrocious crime,.

2. such as are committed for the advancement of public justice,

as where an officer kills one that assaults or resists him,...

or one charged with felony is killed in the endeavor to arrest him,.

or where persons are killed in dispersing a mob,....

or where jailor or officer kills the prisoners who assault him,.

or where the trespassers in parks, &c., will not surrender to the keepers, 180

but in all these cases the killing must be an apparent necessity,.... 180

formerly, where one was killed in trial by battle,....

3. such as are committed for the prevention of any forcible and atrocious

in all these cases the slayer is faultless and not punishable,.

excusable homicide is,

1. per infortuniam, or by misadventure,...

but if this occur in consequence of an idle, dangerous and unlawful sport

or other act it is manslaughter,.

as where one is slain who attempts robbery, murder or burglary,

or in the defence of chastity, .....

2. se defendendo, or in self-defence,.

but here it must appear that the slayer had no other possible (or prob-

able) means of escaping from his assailant,

this head includes defence of one's family,..

also the case where both parties are innocent, as shipwrecked persons

contending for the same plank,.......

in these cases there was formerly forfeiture of goods,

felonious homicide is the killing of a human creature without justification or ex-

this may be self-murder, punished by ignominous burial and forfeiture of

or killing another, which is either manslaughter or murder,.....

manslaughter is the unlawful killing of another without malice express or im-

which is either voluntary or involuntary,.

instances of the first, where in a sudden fight one kills another, or the hus-

band slays one taken in adultery with his wife,...

instances of the second, where one kills another in doing a lawful act negli-

gently or in an unlawful manner,

these homicides felony, but not capital, generally,.

urder is the unlawful killing by one of sound mind and memory of any reason-

ble creature in being, and under the king's peace, with malice aforethought,

express or implied,

express malice is where one with deliberate mind and formed design, doth kill

and this exists when one kills another in a duel,

and where one upon a sudden provocation beats another in a cruel and

unusual manner,...

the malice need not be towards the person killed in particular,

malice is implied without proof in case of deliberate killing, or killing with-

out provocation,

and where one kills an officer in the performance of his duty,

and where one is killed in the attempt to commit a felony,.

parricide is the murder of one's parents or children,..

petit treason is the murder of the master by the servant, the husband by the

wife, or his superior by an ecclesiastical person,

the distinction between which and murder is now abolished,

UF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS,

offences against the persons of individuals are :

1. mayhem, or the violently depriving another of the use of such of his mem-

bers as may render him the less able in fighting to defend himself or

annoy his adversary,

which includes loss or disabling of a hand, finger, eye or foretooth, 205

to which offence may be added malicious shooting at any one,

2. forcible abduction and marriage or defilement of females,

and taking away female child under sixteen years of age from parent or

3. rape, or the carnal knowledge of a woman, forcibly and against her will,. 210

which a male infant under fourteen is presumed incapable of committing, 212

forcible violation of a harlot is rape,.

5, 6, 7. assaults, batteries and wounding, which are punishable as misdemean-

of which beating a clerk in orders or clergymen is more severely punished, 217

8. false imprisonment also a misdemeanor,

9. kidnapping, or the forcible abducting or stealing away of a person from his

own country and sending him into another,..

CHAPTER XVI.

OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS,

offences more immediately affecting the habitations of individuals, are arson and

arson is the malicious and wilful burning of the dwelling-house of another, 220

1. out-houses which are parcel of the dwelling, though not contiguous, are

subjects of arson,.

also, a barn filled with hay or corn, or a stack of corn by the old com-

the house must be the house of another,

2. the attempt to burn a dwelling is not arson, but the consuming of any part

but malice is essential,.

OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS — (continued.)

the offence is felony,.....

burglary is the breaking and entering by night into a dwelling-house with intent

to commit a felony,

1. it is night when there is not daylight enough begun or left to discern a

man's face withal,.....

2. the offence may be committed in a church,.....

and in any house where a man resides, though he may be temporarily ab-

and in any building inclosed with the house by the same common fence,.. 225

a chamber in college or inn of court, &c., is the occupant's mansion,.. 225

tents and booths not dwelling houses, though the owner lodge there, 226

3. there must be both a breaking and an entry,.

the removal of any obstruction to entering is a sufficient breaking,

the entering a chimney, or getting in by fraudulent artifice,....

the entry with any part of the body, or with an instrument held in the

hand, is sufficient,.

4. the intent must be to commit either a common-law or statutory felony,.. 223

OF OFFENCES AGAINST PRIVATE PROPERTY,.....

CHAPTER XVII.

offences more immediately affecting the property of individuals are:

1. larceny, which is either simple or compound,.....

simple larceny is the felonious taking and carrying away of the personal

goods of another, ...

the taking of one's own goods to defend another is felony in some cases, 281

any removal of the goods, though the thief does not make off with them,

is a sufficient carrying away,·

the property must be the personal goods of another,.

annimals feræ naturæ, unreclaimed, not subjects of larceny generally,.. 235

but domestic animals (except dogs and the like) are,.

compound larceny has all the properties of the other, with the aggrava-

and from the person, or from one's presence, and be accomplished

by menaces or violence,

the value is immaterial,

the taking must be by force or a previous putting in fear,

2. malicious mischief to property from wanton cruelty or revenge,

3. forgery, or the fraudulent making or alteration of a writing to the preju-

dice of another man's right,

the statutes for the punishment thereof,.

preventive justice consists in obliging persons suspected of future misbehavior to

give pledge or securities for keeping the peace or for good behavior, ..... 251

the security consists in being bound in a recognizance in a certain sum, to be

void if the condition is observed,...

the condition may be to keep the peace generally, or particularly, also with

regard to the person craving the security,

if the condition is broken, the recognizance is estreated and sent up to the

exchequer for suit,

any justice of the peace may demand such security,

or the superior courts may take it,

femes covert and infants give security by their friends and not in person... 254

OF THE MEANS OF PREVENTING OFFENCES (continued.)

the security is discharged 1. by demise of the king; 2. by death

of the principal before forfeiture; 3. by order of the court on

cause; 4. if granted on private account, by release, &c.,...... 254

any justice may ex officio bind parties to keep the peace who make af-

fray in his presence, &c.,..

and private parties may swear the peace against others, where

there is just cause to fear injury,

what will constitute a breach of the recognizance,

any justice may bind over to the good behavior any that be not of good

courts of criminal jurisdiction are either of a public and general jurisdiction, or

only of a private and special jurisdiction,...

criminal courts of public and general jurisdiction are,

1. the high court of parliament, which may by bill attaint persons or inflict

pains and penalties,

and the commons may impeach before the lords a commoner for high mis-

demeanors, or a peer for any crime,.

proceedings on impeachment,.

2. the court of the lord high steward, for the trial of peers for treason, felony

or misprisison of either,

the trial being by peers upon indictment previously found,

all the peers being summoned except the bishops,....

5. the high court of admiralty, having cognizance of offences on the sea, or on

the coasts out of the body of any county, &c.,

3. the court of king's bench, which takes cognizance of crimes of all grades,. 265

4. the court of chivalry, now disused,

the powers now transferred to the central criminal court,.

269n

6, 7. the courts of oyer and terminer and general goal delivery,

11. the court of the coroner, to enquire concerning deaths in prison or sudden

or violent deaths,

12. the court of the clerk of the market,

criminal courts of a private and special jurisdiction are,

1. the court of the lord steward, treasurer or controller of the king's house-

2. the court of the lord steward of the king's household, or in his absence, of

the treasurer, controller and steward of the marshalsea,.

3. the courts of the two universities,......

OF SUMMARY CONVICTIONS,.

summary convictions, except in case of contempts are unknown to the common

in these there is no intervention of a jury,

these are allowed,

1. in cases of offences against the revenue laws,...

2. in cases of vagrancy and other disorderly offences,

a summons in these cases is requisite,....

to this head may also be referred,

3. the punishment of contempts of court by attachment,

the power to do which is an inseparable incident to every superior

if the offence be in the presence of the court it may be punished with-
out further proof or examination, ...

286

in other cases a party is generally ruled to show cause, and examined
on interrogatories,..

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