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PERTY

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Pago lawful malicious act, puls an end to 2. Arson is the malicious and wilful his own life. This is felony; punish- burning of the house, or out-house, of ed by ignominious burial, and forfeit- another man. This is felony ; in some ure of goods and chattels

189 cases within, in others without, clergy 220 e Killing another is, l. Manslaugh. 3. Burglary is the breaking and enterter. II. Murder

190 ing, by night, into a mansion-house ; 0. Manslaughter is the unlawful killing with intent to commit a felony. This of another; without malice, express is felony, without clergy

291 or implied. This is either, 'I.' Vo: luntary, upon a sudden heat. Il. In

CHAPTER XVII. volontary, in the commission of some unlawful act. Both are felony, but Or OFFENCES AGAINST PRIVATE PRO. within clergy; except in the case of

229 to 247 stabbing

191 1. Crimes, affecting the private property. 10. Murder is when a person, of sound

memory and discretion, unlawfully Malicious mischief. III. Forgery 220 killeth any reasonable creature, in be 2. Larceny is, I. Simple. II. Mixed, or ing, and under the king's peace ; with compound malice aforethought, either express or 3. Simple larceny is the felonious tak. implied. This is felony, without cler- ing, and carrying away, of the pergy; punished with speedy death, and sonal goods of another. And it is, I.

hanging in chains, or dissection 194 Grand larceny; being above the value 11. Petit treason, (being and aggravated of twelve pence. Which is felony ; degree of murder), is where the ser. in some cases within, in others with: vant kills his master, the wife her hus. out, clergy. II. Petit larceny; to the band, or the ecclesiastic his superior. value of twelve peace or under. Penalty : in men, to be drawn, and Which is also felony, but not capital ; hanged; in women, to be drawn, and being punished with whipping, or burned

203
transportation

229 4. Mixed, or compound, larceny, is that CHAPTER XV.

wherein the 'taking is accompanied

with the aggravation of being, 1. From "TOTTENCES AGAINST THE PERSONS the house.L. From the person 239 or INDIVIDUALS

205 to 219 5. Larcenies from the house, by day or Crimes affecting the persons of indi. night, are felonies without clergy, viduals, by other corporal injuries not when they are, I. Larcenies, above amounting to homicide, are, I. May. twelve pence, from a church or by hem; and also shonting at another. breaking a tent or booth in a market Penalties : fine ; imprisonment ; judg. or fair, by day or night, the owner or ment" of selony, without clergy. 11. his family being therein ;- or by break. Forcible abduction, and marriage or ing a dwelling house by day, any per. defilement, of an heiress; which is son being therein ;-or from a dwelling. felony:

also, stealing, and deflowering house by day, without breaking, any or marrying, any woman-child under person therein being put in fear ;-or the age of sixteeen years; for which from a dwelling-house by night, wiiba the penalty is imprisonment, fine, and out breaking, the owner or his family temporary forfeiture of her lands.' III.

being therein, and put in fear. II. Rape ; and also carnal knowledge of a Larcenies, of five shillings, by break. woman-child under the age

ing the dwelling-house, shop, or ware years. IV. Baggery, with man or house, by day, thongh no person be beast.-Both these are felonies, with

therein ;-or, hy privately stealing in out clergy. y. Assault. VI. Batte. any shop, warehouse, coach-house, or i especially of clergymen. VII. stable, by day or mght, without break. Wounding." Penalties, in all three : ing, and though no person he therein. fine; imprisonment; and other corpo- III. Larcenies, of forty shillings, from ral punishment. VIII. False impri. & dwelling-house or its' out-houses, dournent.' Penalties : fine ; imprison. without breaking, and though no per. ment; and (in some atrocious cases) son be therein

223 the pains of premunire, and incapacity 6. Larceny from the person is, I. By of office or pardon. "IX. Kidnapping, privately stealing, from the person o or, forcibly stealing away the king's

another, above the value of twelve subjects. Penalty : fine : imprison- pence.' II. By robbery; or the feloni. ment; and pillory

205-219 ous and forcible taking, from the per.

son of another, goods or money of any CHAPTER XVI.

value, by patting him in fear. These

are both felonies without clergy.' An OT OFTENCES AGAINST THE HABITA

attempt to rob is also felony

241 TIONS OF INDIVIDUALS 220 to 222 7. Malicious mischief, by destroying 1. Crimes, affecting the habitations of dikes, goods, cattle, ships, garments,

individuals, are, I. Arson. ' II. "Bur- fish-ponds, trees, woods, churches, glary

220 chapels, meeting-houses, houses, out VOL. II

3

ten

court

Page bousra, corn, hay, straw, sea or river the lord steward, &c. by stati ie of banks, hop-binds, coal-mines, (or en. Henry VIII. III. The university gince thereunto belonging), or any

courts

275-277 lences for inclosures by act of Parliament, is felony, and, in most cases,

CHAPTER XX without benefit of clergy

243 I Forgery is the fraudulent making or Or SUMMARY ConvicTIONS 280 to 288

alteration of a writing, in prejudice of 1. Proceedings in criminal courts are, I. another's right. Penalties : fiae ; in

Summary. II. Regular prisonment; pillory; loss of nose and 2. Suminary proceedings are such, whereears; forfeiture ; judgment of felony, by a man may be convicted of divers without clergy

247 offences, without any formal process

or jury, at the discretion of the judge
CHAPTER XVIII.

or judges appointed by act of parlia.
ment, or common law

280 OF THE MEANS OF PREVENTING Or. 3. Such are, I. Trials of offences an. ISNOKS

251 to 256 frauds against the laws of excise and 1. Crimes and raisdemeanors may be other branches of the king's revenue.

prevented, by compelling suspected II. Convictions before justices of the persons to give security : which is ef.

peace upon a variety of minute offen. fected by binding them in a condi- ces chiefly against the public police. tional recognizance to the king, laken III. Attachments for contempts to the in court, or by a magistrate out of superior courts of justice

281-286 251 2. These recognizances may be condi.

CHAPTER XXI. tioned, 1. To keep the peace. II, To be of the good behaviour 252 Or ARRESTS

289 to 296 3. They may be taken by any justice or 1. Regular proceedings, in the courts of

conservator of the peace, at his own common law, are, I. Arrest. II. Comdiscretion; or, at the request of such

mitment and bail. III. Prosecution. as are entitled to demand the same 253 IV. Process. V. Arraignment, and 4 All persons, who have given suffi.

its incidents. VI. Plea and issue. cient cause to apprehend an intended VII. Trial and conviction. VIII. Clerbreach of the peace, may be bound gy. IX. Judgment, and its consequenover to keep the peace; and all those ces. X. Reversal of judgment. " XI. that be not of good fame, may be bound Reprieve or pardon. XII. Execution 289 to the good behaviour ; and may, upon 2. An arrest is the apprehending, or rerefusal in either case, be committed to straining, of one's person; in order to faol

256 be forthcoming to answer a crime,

whereof one is accused or suspected 289 CHAPTER XIX.

3. This may be done, I. By warrant. II.

By an officer, without warrant. III. Or Courts of a CRIMINAL JRISDIC.

By a private person, without warrant. 258 to 277 IV. By hue and cry

289-205 1. In the method of punishment may be considered, I. The several courts of

CHAPTER XXII. criminal jurisdiction. II. The seve. ral proceedings therein

258 Or COMMITMENT AND BAIL 296 to 290 2. The criminal courts are, I. Those of 1. Commitment in the confinement of

a public and general jurisdiction one's person in prison for safe custody, throughout the realm. II. Those of a by warrant from proper authority ; un.

private and special jurisdiction 258 less, in bailable offences, he puts in 3. Public criminal courts are, I. The sufficient bail, or security for his funigh court of parliament; which pro

ture appearance

296 ceeds by impeachment. II. The court 2. The magistrate is bound to take reaof the lord high steward; and the court sonable bail, if offered ; unless the or. of the king in full parliament: for the

fender be not bailable

296 trial of capitally indicted peers. III. 3. Such are, I. Persons accused of trea. The court of King's Bench. IV. The son; or, II. Of murder; or, III. Of court of chivalry. V. The court of manslaughter, by indictment; or if admiralty, under the king's commis- the prisoner was clearly the slayer. sion. Vl. The courts of oyer and ter- IV. Prison-breakers, when committed miner and general gaol-delivery. VII. for felony. V. Outlaws. VI. Those The court of quarter-sessions of the who have abjured the realm. VII. peace. VIN. The sheriff's tourn. ix. Approvers, and appellees. VIII. Per. The court-leet. X. The court of the

sons taken with the mainour. IX. coroner. XI. The court of the clerk

Persons accused of arson. X. Er. of the market

258-275 communicated persons « Private criminal courts are, I. The 4. The magistrate may, at his discretion,

court of the lord steward, &c. by sta- admit or not admit lo bail, persons not tute of Henry VII. II The court of of good fame, charged with other telo

TION

Page nies, whether as principals or as accessories

299 5. If they be of gond fame, he is bound to admit them to bail

299 6. The court of King's Bench, or its

judges in time of vacation, may bail in any case whatsoever

299

CHAPTER XXIII.

TION

OT TRE SEVERAL MODES OF PROSECU.

301 to 312 1. Prosecution, or the manner of ac

cusing offenders, is either by a previous finding of a grand jury, as, I. By presentment. II. By indictment. Or, without such finding-III. By information. IV. By appeal

301 2. A presentment is the notice taken by

a grand jury of any offence, from their own knowledge or observation

301 3. An indictment is a written accusation

of one or more persons of a crime or misdemeanor, preferred to, and presented on oath by, a grand jury ; er. pressing, with sufficient certainty, the person,

time, place, and offence 302 An information is, I. At the suit of the king and a subject, upon penal statutes. II. At the suit of the king only. Either, 1. Field by the attor. ney-general ex officio, for such misde. meanors as affect the king's person or government : or, 2. Filed by the mas. ter of the crown-office (with lease of the court of King's Bench) at the relation of some private subject, for other gross and notorious misdernea. nors. All differing from indictments in this : that they are exhibited by the informer, or the king's officer, and

not on the oath of a grand jury 307-312 5. An appeal is an accusation or suit,

brought by one private subject against another, for larceny, rape, mayhom, arson, or homicide : which the king cannot discharge or pardon, but the party alone can release

312

CHAPTER XXIV.

Or PROCESS UPON AN INDICTMENT

Page prisoner to the bar of the court, to-an

swer the matter of the indictment 322 2. Incident hereunto are, I. The stand

ing mute of the prisoner; for which, in petit treason, and felonies of death, he shall undergo the peine for et dure. II. His confession: which is either simple ; or by way of approvement

324-331

CHAPTER XXVI.

ment.

OF PLEA, AND ISSUE

332 to 341 1. The plea, or defensive matter alleged

by the prisoner, may be, I. A plea to the jurisdiction. Il. A demurrer in point of law.

III. A plea in abateIV. A special plea in bar : which is Ist, auierfoits acquit; 2dly, auterfoits convict; 3dly, auterfoits atlaint'; 4thly, à pardon. V. The general issue, not guilty

332-341 2. Hereupon issue is joined by the clerk

of the arraigns, on behalf of the king 341

CHAPTER XXVII.

OF TRIAL, AND CONVICTION 342 to 363
1. Trials of offences, by the laws of

England, were and are, I. By ordeal,
of either fire or water. II. By the
corsned. Both these have been long
abolished. III. By battel, in appeals
and approvements. IV. By the peers

of Great Britain. V. By Jury 342-349 2. The method and process of trial by

jury is, I. The impanelling of the jury. II. Challenges : ist, for cause ; 2dly, peremptory. III. Tales de circumstanlibus. ' IV. The oath of the jury. V. The evidence. VI. The verdict, either general or special

350-361 3. Conviction, is when the prisoner

pleads, or is found, guilty : where.
upon, in felonies, the prosecutor is en.
titled to, I. His expenses.

II. Res.
titution of his goods

361-363

CHAPTER XXVIII.

318 to 320 Process to bring in an offender, when Indicted in his absence, is, in misde. meanors, by venire facias, distress infinite, and capias ; in capital crimes, by capias only: and, in both, by out. lawry

318-320 2. During this stage of proceedings, the

indictment may be removed into the
court of King's Bench from any inse-
rior jurisdiction, by writ of certiorari
facias : and cognizance must be claim-
ed in places of exclusive jurisdiction 320

OF THE BENEFIT OF CLBRGY 365 t 374
1. Clergy, or the benefit thereof, was

originally derived from the usurped
jurisdiction of the popish ecclesias-
tics ; but hath since been new model-
led by several statutes

365 2. It is an exemption of the clergy from

any other secular punishment for felo.
ny, than imprisonment for a year, at
the court's discretion; and it is ex-
tended likewise, absolutely, to lay
peers, for the first offence; and to all
lay commoners, for the first offence
also, upon condition of branding, im-
prisonment, or transportation

371 3. All felonies are entitled to the benefit

of clergy, except such as are now oust-
ed by particular statutes

372 4. Felons, on receiving the benefit of

clergy, (though they forfeit their goods
to the crown), are discharged of all

CHAPTER XXV.

y ARRAIGNMENT, AND

ITS INCI. DENT.

322-331 1. Arraignmen is the calling of the

Page clergyable felonies before committed, and restored in all capacities and cre. dits

374

Page ed, I. Without a writ of error; for matter dehors the record. II. By writ of error; for mistakes in the judgment, or record. III. By act of Parliament ; for favour

390-392 3. When an outlawry is reversed, the

party is restored to the same plight, as if he had appeared upon the capias. When a judgment on conviction is re versed, the party stands as if never accused

292

CHAPTER XXXI.

OF REPRIEVE AND PARDON 394 to 396 1. A repriese is a temporary suspension

of the judgment, l. Ex arbitrio judicis. II. Ex necessitate legis; for prego nancy, insanity, or the trial of identi, ty of person, wh must always be tried instanter

394-396 2. A pardon is a permanent avoider of

the judgment by the king's majesty in offences against his crown and dig: nity; drawn in due form of law, allowed in open court, and thereby mak. ing the offender a new inan

396 3. The king cannot pardon, I. Imprison.

ment of the subject beyond the seas. II. Offences prosecuted by appeal. III. Common nuisances. IV. Offen ces against popular or penal statutes, after information brought by a subject. Nor is his pardon pleadable to an impeachment by the commons in Parliament

398 CHAPTER XXXII.

403

403

CHAPTER XXIX.

Or JUDGMENT, AND ITS CONSEQUEN•
CES

375 to 389 1. Judgment (unless any matter be offer.

ed in arresi thereon follows upon conviction ; being the pronouncing of that punishment which is expressly ordain. ed by law

375 2. Attainder of a criminal, is the imme

diate consequence, I. Of having judg. ment of death pronounced upon him.

II. Of outlawry for a capital offence 380 3. The consequences of attainder are,

1. Forfeiture to the king. II. Corruption of blood

381 Forfeiture to the king is, I. Of real estates, upon attainder :- in high trea. son, absolutely, till the death of the late pretender's sons ;-in felonies, for the king's year, day, and waste ; in misprision of treason, assaults on a judge, or battery sitting the courts ; during the life of the offender. II. Of personal estates, upon conviction ; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of

the king's courts, and flight 381-388 5 Corruption of blood is an atter ex

tinction of all inheritable quality there. in: so that, after the king's forfeiture is first satisfied, the criminal's lands escheat to the lord of the fee; and he can never afterwards inherit, be inherited, or have any inheritance derived through him

388-9 CHAPTER XXX,

OF REVERSAL OF JUDGMENT 390 to 392 1. Judgments, and their consequences,

may be avoided, I. By falsifying, or roversing," the attainder. II. By reprieve, or pardon

390 & Attaindere may be falsified, or revers

OF EXECUTION 1. Execution is the completion of leu.

man punishment, and must be strict. ly performed in the manner which the

law directs 2. The warrant for execution is some.

times under the hand and seal of the Judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judge's signing the calendar of prisoners, with their separate judgments in the margin.

403

COMMENTARIES

ON

THE LAWS OF ENGLAND

BOOK THE THIRD.

OF PRIVATE WRONGS.

CHAPTER 1.
OF THE REDRESS OF PRIVATE WRONGS BY THE

MÉRÉ ACT OF THE PARTIES.

At the opening of these Commentaries (a) municipal law was in general defined to be, "a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong (6)." From hence therefore it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned (c) the distribution of

of these collections into two general heads ; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden, and redressed by the laws of England.

In the prosecution of the first of these inquiries, we distin- [ 2 ] guished rights into two sorts: first, such as concern, or are annexed to the persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these Commentaries : and secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things : and these, with the means of transferring them from man to man, were the subject of the second book. I am now therefore to proceed to the consideration of wrongs, which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights : the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fus precedent to that of nefas.

Wrongs are divisible into two sorts or species: private wrongs, and pub vic wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and aro

contraria. Cic. II. Philipp. 12. Bract. I. I, c. ) ita, jubens honesta, at prohibens (c) Book I. ch. 1.

(b) Introd. 92 (6) Sancto

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