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 ought 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 cautious 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 manner 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) 1 Hal. P. C. 635.

(18) As to the decisions, see 1 East P. C. 480. 437. Bac. Ah. Sodomy. Hawk. b. 1. c. 4. 1 Hale, 669, 679. Com. Dig. Justices, s. 4. Russ. & Ry. C. C. 331. If committed on a boy under fourteen, it is felony in the agent only. 1 Hale, 470. 3 Co. Inst. 59. As to sending threatening letters, charging a party with this offence, see ante, 144, note 3. As to offence of soliciting another to commit the offence, see 2 East, 5.

(19) By stat. 9 Geo. IV. c. 31, § 15, every person guilty of this offence, either with man

kind or with any animal, shall suffer death as a felon. And, by ◊ 18, it is directed, that the proof of penetration only shall be sufficient for the purpose of conviction.

In New-York the crime is punishable by imprisonment not more than 10 years. (2 R. S. 689, ◊ 20 :) our statute, 2 R. S. 735, ◊ 18, is similar to the 18th section of the English Act, 9 Geo. IV. c. 31; in the description of the of fence, however, our Act uses the world beast, not animal. See 1 Russel 568, as to the word beast.

respect the delicacy of our English law, which treats it, in its very indictments, 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 ultore, 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); though Fleta (o) 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 (q).

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 government, 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 unnatural 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 pillory (22).

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 (t). 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 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 be

(t) 2 Inst. 492. 620,

(u) Artic. Cler. Edw. II. c. 4. F. N. B. 53. nishment of whipping has been inflicted in addition to that of imprisonment and finding sureties for good behaviour. 1 Burn. J, 24th edit. 231. East P. C. 406. The 3 Geo. IV. e. 114. inflicts a severer punishment on persons guilty of assaults, therein particularly described. In cases where the offence more immediately affects the individual, the defendant is sometimes permitted by the court, even after conviction, to speak with the prosecutor, before any judgment is pronounced, and a trivial punishment (generally a fine of a shilling) is inflicted, if the prosecutor declares himself satisfied, post 363, 4. And where in a case of indictment for ill-treating a parish apprentice, a security for the fair expenses of the prosecution had been given by the defendant, after conviction, upon an understanding that the court would abate the period of his imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the court, and to be considered as part of the punishment suffered by the de

(v) 2 Roll. Rep. 384.
(w) See book III. pago 127.

fendant, in expiation of his offence, in addi-
tion to the imprisonment inflicted on him. 11
East, 46.

(23) This Act is repealed, so far as relates to laying violent hands on a clerk, by 9 Geo. IV. c. 31: by 23 of which, if any person shall arrest any clergyman upon any civil process, while he shall be performing divine service, or shall, with the knowledge of such person, be going to perform the same, or returning from the performance thereof, every such of fender shall be guilty of a misdemeanor; and, being convicted thereof, shall suffer such pu nishment, by fine or imprisonment, or by both, as the court shall award. The 50 Edw. III. c. 5, and 1 Rich. II. c. 15, upon the same subject, are also repealed by the new Act. The arrest, if not on a Sunday, would be good in law. Wats. c. 34.

In New-York, clergymen have no such privileges as are allowed by the Act 9 Geo. IV. c. 31. above referred to.

fore (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 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 (b)" So likewise in the civil law, the offence of spiriting away and stealing men and children; which was called plagium, and the offenders plagiari, 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,

(r) See page 116.

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

(z) West. Symbol. part 2, page 92. (a) I Hawk. P. C. 210.

(24) Repealed by 7 and 8 Geo. IV. c. 27: but see 31 Car. II. c. 2. which prohibits the sending of any British subject to any foreign prison. See also 2 R. S. 692, § 11, and id. 664, 28, &c.

(25) Where a child is stolen for the sake of its clothes, it is the same species of felony, as if the clothes were stolen without the child. But it cannot be considered a felony, where a *child is stolen and not deprived of its clothes. This crime would in general be an aggravated species of false imprisonment; but, without referring it to that class of offences, stealing a child from its parents is an act so shocking and horrid, that it would be considered the, highest misdemeanor, punishable by fine and imprisonment, upon the same principle on which it was decided to be a misdemeanor, to steal a dead body from a grave.

(26) Stealing children was, by 54 Geo. III. c. 101, punishable as in cases of grand larce. ny: but that statute is now repealed by 9 Geo. IV. c. 31; by 21 of which, if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain, any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possession of

such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or if any person shall, with any such intent as aforesaid, receive or harbour any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as herein before mentioned: every such offender, and every person counselling..adding or abetting, such offender, shall be guilty of felony; and being convicted thereof, shall be liable to be transported for the term of seven years, or to be imprisoned, with or without hard labour, for any term not exceeding two years, and if a male, to be once, twice, or thrice, publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment. Provided always, that no person who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of his getting possession of such child, or taking such child out of the possession of the mother, or any other person having the lawful charge thereof."

In New-York, the Act (2 R. S. 665, § 34,) is nearly the same as that part of the English Act that precedes the part which notices the

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,