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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 ecclefiaftical court, first, pro correctione et falute animae by enjoining penance, and then again for such fum of money as shall be agreed on for taking off the penance enjoined: it being usual in those courts to exchange their fpiritual cenfures for a round compenfation in money; perhaps because poverty is generally esteemed by the moralists the best medicine pro falute animae.
VIII. THE two remaining crimes and offences, against the perfons of his majesty's subjects, are infringements of their natural liberty concerning the firft of which, false imprisonment, it's nature and incidents, I must content myself with referring the student to what was obferved in the preceding volume ", when we confidered it as a mere civil injury. But, befides the private satisfaction given to the individual by action, the law alfo demands public vengeance for the breach of the king's peace, for the lofs which the state suftains by the confinement of one of it's members, and for the infringement of the good order of fociety. We have before seen*, that the most atrocious degree of this offence, that of sending any subject of this realm a prifoner into parts beyond the feas, whereby he is deprived of the friendly affiftance of the laws to redeem him from fuch his captivity, is punished with the pains of praemunire, and incapacity to hold any office, without any poffibility of pardon". Inferior degrees of the fame offence of false imprisonment are also punishable by indictment (like affaults and batteries) and the delinquent may be fined and imprisoned". And indeed there can be no doubt, but that all kinds of crimes of a public nature, all disturbances of the peace, all oppreffions, and other misdemesnors whatsoever, of a notoriously evil example, may be indicted at the fuit of the king.
Y 2 Rol. Rep. 384.
See Vol. III. pag. 127.
* See pag. 116.
Stat. 31 Car. II. C. 2.
z Weft. Symbol. part 2. pag. 92.
1 Hawk. P. C. 210.
IX. THE other remaining offence, that of kidnapping, being the forcible abduction or ftealing away of man, woman, or child from their own country, and felling them into another, was capital by the Jewish law. "He that stealeth a man, and felleth
him, or if he be found in his hand, he fhall furely be put to "death"." So likewife 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. This is unquestionably a very heinous crime, as it robs the king of his fubjects, banishes a man from his country, and may in it's confequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory. And also the statute 11 & 12 W. III. c. 7. though principally intended against pirates, has a clause that extends to prevent the leaving of fuch persons abroad, as are thus kidnapped or spirited away; by enacting, that if any captain of a merchant veffel fhall (during his being abroad) force any person on fhore, or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and defirous to return, he fhall fuffer three months imprisonment. And thus much for offences that more immediately affect the perfons of individuals.
b Exod. xxi. 16.
Ff. 48. 15. 1.
Raym. 474. z Show. 221. Skinn. 47-
CHAPTER THE SIXTEENTH.
OF OFFENCES AGAINST THE HABITATIONS
HE only two offences, that more immediately affect the habitations of individuals or private fubjects, are those of arfon and burglary.
I. ARSON, ab ardendo, is the malicious and wilful burning of the house or outhoufes of another man. This is an offence of very great malignity, and much more pernicious to the public than fimple theft: because, firft, it is an offence against that right, of habitation, which is acquired by the law of nature as well as by the laws of fociety; next, because of the terror and confufion that neceffarily attends it; and, laftly, because in fimple theft the thing stolen only changes it's mafter, but still remains in effe for the benefit of the public, whereas by burning the very substance is abfolutely destroyed. It is also frequently more deftructive than murder itself, of which too it is often the cause: fince murder, atrocious as it is, feldom extends beyond the felonious act defigned; whereas fire too frequently involves in the common calamity perfons unknown to the incendiary, and not intended to be hurt by him, and friends as well as enemies.
For which reafon the civil law punishes with death such as maliciously set fire to houses in towns, and contiguous to others; but is more merciful to fuch as only fire a cottage, or house, standing by itself.
OUR English law also distinguishes with much accuracy upon this crime. And therefore we will enquire, first, what is such a house as may be the subject of this offence; next, wherein the offence itself confifts, or what amounts to a burning of such house; and, laftly, how the offence is punished.
1. Not only the bare dwelling houfe, but all outhoufes that are parcel thereof, though not contiguous thereto, nor under the fame roof, as barns and stables, may be the subject of arson 3. 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. The burning of a stack of corn was antiently likewise accounted arfon. And indeed all the niceties and diftinctions which we meet with in our books, concerning what fhall, or fhall not, amount to arfon, seem now to be taken away by a variety of ftatutes; which will be mentioned in the next chapter, and have made the punishment of wilful burning equally extenfive as the mischief. The offence of arfon (strictly fo called) may be committed by wilfully setting fire to one's own house, provided one's neighbour's house is thereby alfo 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. For by the common law no intention to commit a felony amounts to the fame crime; though it does, in fome cafes, by particular ftatutes. However fuch wilful firing one's own house, in a town, is a high misdemefnor, and punishable by fine, imprisonment, pillory, and perpetual fureties for the good behaviour. And if a landlord or reverfioner sets fire
to his own houfe, of which another is in poffeffion under a leafe from himself or from those whofe eftate he hath, it fhall be accounted arfon; for, during the leafe, the house is the perty of the tenant.
2. As to what shall be faid a burning, fo as to amount to arfon a bare intent, or attempt to do it, by actually setting fire to an house, unless it abfolutely burns, does not fall within the defcription of incendit et combuffit; which were words neceffary, in the days of law-latin, to all indictments of this fort. But the burning and confuming of any part is fufficient; though the fire be afterwards extinguished". Also it must be a malicious burning; otherwise it is only a trespass: and therefore no negligence or mifchance amounts to it. For which reason, though an unqualified perfon, by shooting with a gun, happens to fet fire to the thatch of a house, this fir 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, fhall forfeit 100 l, or be sent to the houfe of correction for eighteen months: in the same manner as the Roman law directed" eos, qui negligenter ignes apud fe "habuerint, fuftibus vel flagellis caedi*."
3. THE punishment of arfon was death by our antient Saxon laws'. And, in the reign of Edward the firft, this fentence was executed by a kind of lex talionis; for the incendiaries were burnt to death" as they were alfo by the Gothic conftitutions". The ftatute 8 Hen. VI. c. 6. made the wilful burning of houses, under fome special circumstances therein mentioned, amount to the crime of high treafon. 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 fufpenfion. The offence of arfon was denied the benefit of clergy by statute