The Online Library of Liberty

A project of Liberty Fund, Inc.

• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

*[*xiii.No. III.

PROCEEDINGS ON AN ACTION OF DEBT IN THE COURT OF COMMON PLEAS; REMOVED INTO THE KING’S BENCH BY WRIT OF ERROR.

Sect. 1.

Original.

George the Second, by the grace of God, of Great Britain,Præcipe. France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. Command Charles Long, late of Burford, gentleman, that justly and without delay he render to William Burton two hundred pounds, which he owes him and unjustly detains, as he saith. And unless he shall so do, and if the said William shall make you secure of prosecuting his claim, then summon by good summoners the aforesaid Charles, that he be before our justices, at Westminster, on the octave of Saint Hilary, to show wherefore he hath not done it.No. III. And have you there then the summoners, and this writ. Witness ourself at Westminster, the twenty-fourth day of December,Sheriff’s return in the twenty-eighth year of our reign.

Sect. 2.

Process.

George the Second,Attachment. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire,Pone. greeting. Put by gage and safe pledges Charles Long, late of Burford, gentleman, that he be before our justices, at Westminster, on the octave of the Purification of the Blessed Mary, to answer to William Burton of a plea, that he render to him two hundred pounds which he owes him and unjustly detains, as he saith; and to show wherefore he was not before our justices at Westminster on the octave of Saint Hilary, as he was summoned. And have there then the names of the pledges and this writ Witness, Sir John Willes, Knight, at Westminster, the twenty-third day of January,Sheriff’s return. in the twenty-eighth year of our reign.

**xiv.]George the Second,Capias Utiapatum. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. We command you, that you distrein Charles Long, late of Burford, gentleman, by all his lands and chattels within your bailiwick, so that neither he nor any one through him may lay hands on the same, until you shall receive from us another command thereupon; and that you answer to us of the issues of the same; and that you have his body before our justices at Westminster, from the day of Easter, in fifteen days, to answer to William Burton of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith, and to hear his judgment of his many defaults. Witness, Sir John Willes, Knight, at West minster, the twelfth day of February, in the twenty-eighth year of our reign.

The within-named Charles Long hath nothing in my bailiwick whereby he may be distreined.Sheriff’s return. Nihil.

George the Second, by the grace of God,Capias ad respondendum. of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. We command you that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before our justices at Westminster, from the day of Easter, in five weeks, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith; and whereupon you have returned to our justices at Westminster that the said Charles hath nothing in your bailiwick whereby he may be distreined. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the sixteenth day of April, in the twenty-eighth year of our reign.Sheriff’s return. Non est inventus.

The within-named Charles Long is not found in my bailiwick.

George the Second,Testatum capias. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Berkshire, greeting. We command you that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before our justices at Westminster, on the morrow of the Holy Trinity, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith; and whereupon our sheriff of Oxfordshire hath made a return to our justices at Westminster at a certain day now past, that the **xv.]aforesaid Charles is not found in his bailiwick; and thereupon it is testified in our said court that the aforesaid Charles lurks, wanders, and runs about in your county. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the seventh day of May, in the twenty-eighth year of our reign.

By virtue of this writ to me directed, I have taken the body of the within-named Charles Long; which I have ready at the day and place within contained, according as by this writ it is commanded me.Sheriff’s return. Cepi corpus.

George the Second, by the grace of God, of Great Britain,Alias capias. France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. We command you, as formerly we commanded you, that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before our justices at Westminster, on the morrow of the Holy Trinity, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the seventh day of May, in the twenty-eighth year of our reign.

The within-named Charles Long is not found in my bailiwick.

George the Second, by the grace of God, of Great Britain,Sheriff’s return. Non est inventus. Pluries capias. France, and Ireland King, Defender of the Faith, and so forth: to the sheriff of Oxfordshire, greeting. We command you, as we have more than once commanded you, that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before our justices at Westminster, from the day of the Holy Trinity, in three weeks, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the thirtieth day of May, in the twenty-eighth year of our reign.

The within-named Charles Long is not found in my bailiwick.Sheriff’s return. Non est inventus.

*[*xvi.George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth;Exigi facias. to the sheriff of Oxfordshire, greeting. We command you that you cause Charles Long, late of Burford, gentleman, to be required from county court to county court, until, according to the law and custom of our realm of England, he be outlawed if he doth not appear; and if he doth appear, then take him and cause him to be safely kept, so that you may have his body before our justices at Westminster, on the morrow of All Souls, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith; and whereupon you have returned to our justices at Westminster, from the day of the Holy Trinity, in three weeks, that he is not found in your bailiwick. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the eighteenth day of June, in the twenty-eighth year of our reign.

By virtue of this writ to me directed at my county court, held at Oxford,Sheriff’s return. Primo exactus. in the county of Oxford, on Thursday the twenty-first day of June, in the twenty-ninth year of the reign of the Lord the King within written, the within-named Charles Long was required the first time and did not appear; and at my county court, held at Oxford aforesaid,Secundo exactus. on Thursday the twenty-fourth day of July, in the year aforesaid, the said Charles Long was required the second time and did not appear; and at my county court,Tertio exactus. held at Oxford aforesaid, on Thursday the twenty-first day of August, in the year aforesaid, the said Charles Long was required the third time and did not appear; and at my county court, held at Oxford aforesaid,Quarto exactus. on Thursday the eighteenth day of September, in the year aforesaid, the said Charles Long was required the fourth time and did not appear;Quinto exactus. and at my county court, held at Oxford aforesaid, on Thursday the sixteenth day of October, in the year aforesaid, the said Charles Long was required the fifth time and did not appear; therefore the said Charles Long,Ideo utlagatus. by the judgment of the coroners of the said Lord the King, of the county aforesaid, according to the law and custom of the kingdom of England, is outlawed.

George the Second, by the grace of God, of Great Britain,Writ of proclamation. France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. Whereas, by our writ, we have lately commanded you that you should cause Charles Long, late of Burford, gentleman, to be required from county court to county court, until, according to *[*xviithe law and custom of our realm of England, he should be outlawed if he did not appear; and if he did appear, then that you should take him and cause him to be safely kept, so that you might have his body before our justices at Westminster, on the morrow of All Souls, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith: Therefore, we command you, by virtue of the statute in the thirty-first year of the Lady Elizabeth, late Queen of England, made and provided, that you cause the said Charles Long to be proclaimed, upon three several days, according to the form of that statute, (whereof one proclamation shall be made at or near the most usual door of the church of the parish wherein he inhabits,) that he render himself unto you; so that you may have his body before our justices at Westminster, at the day aforesaid, to answer the said William Burton of the plea aforesaid. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the eighteenth day of June, in the twenty-eighth year of our reign.

Sheriff’s return. Proclamari feci. By virtue of this writ to me directed, at my county court held at Oxford, in the county of Oxford, on Thursday the twenty-sixth day of June, in the twenty-ninth year of the reign of the Lord the King within written, I caused to be proclaimed the first time; and at the general quarter sessions of the peace, held at Oxford aforesaid, on Tuesday the fifteenth day of July in the year aforesaid. I caused to be proclaimed the second time; and at the most usual door of the church of Burford within written, on Sunday the third day of August in the year aforesaid, immediately after divine service, one month at the least before the within-named Charles Long was required the fifth time, I caused to be proclaimed the third time, that the said Charles Long should render himself unto me, as within it is commanded me.

George the Second,Capias utlagatum. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Berkshire, greeting. We command you, that you omit not by reason of any liberty of your county, but that you take Charles Long, late of Burford, in the county of Oxford, gentleman, (being outlawed in the said county of Oxford, on Thursday the sixteenth day of October last past, at the suit of William Burton, gentleman, of a plea of debt, as the sheriff of Oxfordshire aforesaid returned to our justices at Westminster on the morrow of All Souls then next ensuing,) if the said Charles Long may be found in your bailiwick; and him safely keep, so that you may **xviii.] have his body before our justices at Westminster from the day of St. Martin in fifteen days, to do and receive what our court shall consider concerning him in this behalf. Witness, Sir John Willes, Knight, at Westminster, the sixth day of November, in the twenty-ninth year of our reign.

By virtue of this writ to me directed,Sheriff’s return. Cepi corpus. I have taken the body of the within-named Charles Long; which I have ready at the day and place within contained, according as by this writ it is commanded me.

Sect. 3.

4Bill of Middlesex, and Latitat thereupon in the Court of King’s Bench.

Middlesex, to wit. } The Sheriff is commanded that he take Charles Long,Bill of Middlesex for trespass. late of Burford, in the county of Oxford, if he may be found in his bailiwick, and him safely keep, so that he may have his body before the Lord the King at Westminster, on Wednesday next after fifteen days of Easter,Ac etiam in debt. to answer William Burton, gentleman, of a plea of trespass; [and also to a bill of the said William against the aforesaid Charles, for two hundred pounds of debt, according to the custom of the court of the said Lord the King, before the King himself to be exhibited;] and that he have there then this precept.

Sheriff’s return. Non est inventus. Latitat.The within-named Charles Long is not found in my bailiwick.

George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Berkshire, greeting. Whereas we lately commanded our sheriff of Middlesex that he should take Charles Long, late of Burford, in the county of Oxford, if he might be found in his bailiwick, and him safely keep, so that he might be before us at Westminster, at a certain day now past, to answer unto William Burton, gentleman, of a plea of trespass;Ac etiam. [and also to a bill of the said William against the aforesaid Charles, for two hundred pounds of debt, according to the custom of our court, before us to be exhibited;] and our said sheriff of Middlesex at that day returned to us that the aforesaid Charles was not found in his bailiwick; whereupon on the behalf of the aforesaid William, in our court before us, it is sufficiently attested that the aforesaid Charles lurks and runs about in your county: Therefore we command you that you take him, if he may be found in *[*xix.your bailiwick, and him safely keep, so that you may have his body before us at Westminster on Tuesday next after five weeks of Easter, to answer the aforesaid William of the plea [and bill] aforesaid; and have you there then this writ. Witness, Sir Dudley Ryder, Knight, at Westminster, the eighteenth day of April, in the twenty-eighth year of our reign.

By virtue of this writ to me directed,Sheriff’s return. Cepi corpus. I have taken the body of the within-named Charles Long, which I have ready at the day and place within contained, according as by this writ it is commanded me.

Sect. 4.

Writ of Quo Minus in the Exchequer.

George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Berkshire, greeting. We command you that you omit not by reason of any liberty of your county, but that you enter the same, and take Charles Long, late of Burford, in the county of Oxford, gentleman, wheresoever he shall be found in your bailiwick, and him safely keep, so that you may have his body before the Barons of our Exchequer at Westminster on the morrow of the Holy Trinity, to answer William Burton, our debtor of a plea, that he render to him two hundred pounds which he owes him and unjustly detains, whereby he is the less able to satisfy us the debts which he owes us at our said Exchequer, as he saith that he can reasonably show that the same he ought to render: and have you there this writ. Witness, Sir Thomas Parker, Knight, at Westminster, the sixth day of May, in the twenty-eighth year of our reign.

By virtue of this writ to me directed,Sheriff’s return. Cepi corpus. I have taken the body of the within-named Charles Long, which I have ready before the barons within written, according as within it is commanded me.

Sect. 5.

Special Bail, on the Arrest of the Defendant, pursuant to the Testatum Capias, in page XIV.

Know all men, by these presents, that we, Charles Long, of Burford,Bail-bond to the sheriff. in the county of Oxford, gentleman, Peter Hamond, of Bix, in the said county, yeoman, and Edward Thomlinson, of Woodstock, in the said county, innholder, are held and firmly bound to Christopher Jones, esquire, sheriff of the county of Berks, in four hundred pounds of lawful money of Great Britain, to be paid to the said sheriff, or his certain attorney, executors, administrators, or assigns; for which payment well and truly to be made we bind ourselves, and each of us by himself *[*xx.for the whole and in gross, our and every of our heirs, executors, and administrators, firmly by these presents, sealed with our seals. Dated the fifteenth day of May, in the twenty-eighth year of the reign of our sovereign Lord George the Second, by the grace of God King of Great Britain, France, and Ireland, Defender of the Faith, and so forth, and in the year of our Lord one thousand seven hundred and fifty-five.

The condition of this obligation is such, that if the above-bounden Charles Long do appear before the justices of our sovereign Lord the King, at Westminster, on the morrow of the Holy Trinity, to answer William Burton, gentleman, of a plea of debt of two hundred pounds, then this obligation shall be void and of none effect, or else shall be and remain in full force and virtue.

You Charles Long do acknowledge to owe unto the plaintiff tour hundred pounds, and you John Rose and Peter Hamond do severally acknowledge to owe unto the same person the sum of two hundred pounds apiece, to be levied upon your several goods and chattels, lands and tenements, upon condition that,Recognisance of bail before the commissioner. if the defendant be condemned in the action, he shall pay the condemnation, or render himself a prisoner in the Fleet for the same; and, if he fail so to do, you John Rose and Peter Hamond do undertake to do it for him.

Trinity Term, 28 Geo. II.

Berks, to wit. } On a Testatum Capias from Oxfordshire against Charles Long, late of Burford, in the county of Oxford, gentleman, returnable on the morrow of the Holy Trinity,Bail piece. at the suit of William Burton, of a plea of debt of two hundred pounds:

The Bail are, John Rose, of Witney, in the county of Oxford, esquire Peter Hamond, of Bix, in the said county, yeoman.

Richard Price, attorney for the defendant, }

The party himself in 400l.

Each of the bail in 200l.

Taken and acknowledged the twenty-eighth day of May, in the year of our Lord one thousand seven hundred and fifty-five, de bene esse, before me,

Robert Grove,

one of the commissioners.

**XXI.]Sect. 6.

The Record as removed by Writ of Error.

The Lord the King hath given in charge to his trusty and beloved Sir John Willes,Writ of error. Knight, his writ closed in these words:—GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth: to our trusty and beloved Sir John Willes, Knight, greeting. Because in the record and process, and also in the giving of judgment of the plaint, which was in our court before you and your fellows, our justices of the bench, by our writ between William Burton, gentleman, and Charles Long, late of Burford, in the county of Oxford, gentleman, of a certain debt of two hundred pounds, which the said William demands of the said Charles, manifest error hath intervened, to the great damage of him the said William, as we from his complaint are informed; we being willing that the error, if any there be, should be corrected in due manner, and that full and speedy justice should be done to the parties aforesaid in this behalf, do command you, that if judgment thereof be given, then under your seal you do distinctly and openly send the record and process of the plaint aforesaid, with all things concerning them, and this writ; so that we may have them from the day of Easter in fifteen days, wheresoever we shall then be in England; that the record and process aforesaid being inspected, we may cause to be done thereupon, for correcting that error, what of right and according to the law and custom of our realm of England ought to be done. Witness ourself at Westminster, the twelfth day of February, in the twenty-ninth year of our reign.

The record and process whereof in the said writ mention above is made, follow in these words,Chief-justice’s return. to wit:—

Pleas at Westminster before Sir John Willes,The record. Knight, and his brethren, justices of the bench of the Lord the King at Westminster, of the term of the Holy Trinity, in the twenty-eighth year of the reign of the Lord George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, &c.

Oxon, to wit. } Charles Long,Writ. late of Burford, in the county aforesaid, gentleman, was summoned to answer William Burton, of Yarnton in the said county, gentleman, of a plea that he render unto him two hundred pounds,Declaration, or sount, on a bond. which he owes him and unjustly detains, [as he saith.] And whereupon the said William, by Thomas Gough, his attorney, complains, that whereas on the first day of December, in the year of our Lord **xxii.]one thousand seven hundred and fifty-four, at Banbury in this county, the said Charles by his writing obligatory did acknowledge himself to be bound to the said William in the said sum of two hundred pounds of lawful money of Great Britain, to be paid to the said William whenever after the said Charles should be thereto required, nevertheless the said Charles (although often required) hath not paid to the said William the said sum of two hundred pounds, nor any part thereof, but hitherto altogether hath refused, and doth still refuse, to render the same; wherefore he saith that he is injured and hath damage to the value of ten pounds:Profert in curia. and thereupon he brings suit, [and good proof.] And he brings here into court the writing obligatory aforesaid; which testifies the debt aforesaid in form aforesaid: the date whereof is the day and year before mentioned.Defence.And the aforesaid Charles, by Richard Price his attorney, comes and defends the force and injury when [and where it shall behoove him,] and craves oyer of the said writing obligatory, and it is read unto him [in the form aforesaid:] he likewise craves oyer of the condition of the said writing,Oyer prayed of the bond and condition,—viz., to perform an award. and it is read unto him in these words: “The condition of this obligation is such, that if the above-bounden Charles Long, his heirs, executors, and administrators and every of them, shall and do from time to time, and at all times hereafter, well and truly stand to, obey, observe, fulfil, and keep the award, arbitrament, order, rule, judgment, final end, and determination of David Stiles, of Woodstock, in the said county, clerk, and Henry Bacon, of Woodstock aforesaid, gentleman, (arbitrators indifferently nominated and chosen by and between the said Charles Long and the above-named William Burton, to arbitrate, award, order, rule, judge, and determine of all and all manner of actions, cause or causes of action, suits, plaints, debts, duties, reckonings, accounts, controversies, trespasses, and demands whatsoever had, moved, or depending, or which might have been had, moved, or depending, by and between the said parties, for any matter, cause, or thing, from the beginning of the world until the day of the date hereof,) which the said arbitrators shall make and publish, of or in the premises, in writing under their hands and seals, or otherwise by word of mouth in the presence of two credible witnesses, on or before the first day of January next ensuing the date hereof; then this obligation to be void and of none effect, or else to be and remain in full force and virtue.” Which being read and heard,Impariance. the said Charles prays leave to imparl therein here until the octave of the Holy Trinity; and it is granted unto him. The same day is given to the said William Burton, here,Continuance. &c. At which day, to wit, on the octave of the Holy Trinity, here come as well the said William Burton as the said Charles Long, by their attorneys aforesaid; and hereupon the said William *[*xxiii.prays that the said Charles may answer to his writPlea: No such award. and count aforesaid. And the aforesaid Charles defends the force and injury, when, &c., and saith that the said William ought not to have or maintain his said action against him; because he saith, that the said David Stiles and Henry Bacon, the arbitrators before named in the said condition, did not make any such award, arbitrament, order, rule, judgment, final end, or determination, of or in the premises above specified in the said condition, on or before the first day of January, in the condition aforesaid above mentioned, according to the form and effect of the said condition: and this he is ready to verify. Wherefore he prays judgment, whether the said William ought to have or maintain his said action thereof against him [and that he may go thereof without a day.Replication, setting forth an award. ] And the aforesaid William saith that for any thing above alleged by the said Charles in pleadings he ought not to be precluded from having his said action thereof against him; because he saith, that after the making of the said writing obligatory, and before the said first day of January, to wit, on the twenty-sixth day of December, in the year aforesaid, at Banbury aforesaid, in the presence of two credible witnesses, namely, John Dew, of Chalbury, in the county aforesaid, and Richard Morris, of Wytham, in the county of Berks, the said arbitrators undertook the charge of the award, arbitrament, order, rule, judgment, final end, and determination aforesaid, of and in the premises specified in the condition aforesaid; and then and there made and published their award by word of mouth in manner and form following: that is to say, the said arbitrators did award, order, and adjudge that he the said Charles Long should forthwith pay to the said William Burton the sum of seventy-five pounds, and that thereupon all differences between them at the time of the making the said writing obligatory should finally cease and determine. And the said William further saith, that although he afterwards, to wit, on the sixth day of January, in the year of our Lord one thousand seven hundred and fifty-five, at Banbury aforesaid, requested the said Charles to pay to him the said William the said seventy-five pounds, yet (by protestation that the said Charles hath not stood to, obeyed, observed fulfilled, or kept any part of the said award, which by him the said Charles ought to have been stood to,Protestando. obeyed, observed, fulfilled, and kept) for further plea therein he saith, that the said Charles the said seventy-five pounds to the said William hath not hitherto paid; and this he is ready to verify. Wherefore he prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of the said debt, to be adjudged unto him,Demurrer. &c. And the aforesaid Charles saith, that the plea aforesaid by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are in no wise sufficient in **xxiv.]law for the said William to have or maintain his action aforesaid thereupon against him the said Charles; to which the said Charles hath no necessity, neither is he obliged, by the law of the land, in any manner to answer; and this he is ready to verify. Wherefore, for want of a sufficient replication in this behalf, the said Charles, as aforesaid, prays judgment, and that the aforesaid William may be precluded from having his action aforesaid thereupon against him, &c. And the said Charles, according to the form of the statute in that case made and provided, shows to the court here the causes of demurrer following, to wit: that it doth not appear,Causes of demurrer. by the replication aforesaid, that the said arbitrators made the same award in the presence of two credible witnesses on or before the said first day of January, as they ought to have done, according to the form and effect of the condition aforesaid; and that the replication aforesaid is uncertain,Joinder in demurrer. insufficient, and wants form. And the aforesaid William saith, that the plea aforesaid by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are good and sufficient in law for the said William to have and maintain the said action of him the said William thereupon against the said Charles; which said plea, and the matter therein contained, the said William is ready to verify and prove as the court shall award: and because the aforesaid Charles hath not answered to that plea, nor hath he hitherto in any manner denied the same, the said William as before prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of that debt,Continuances. to be adjudged unto him, &c. And because the justices here will advise themselves of and upon the premises before they give judgment thereupon, a day is thereupon given to the parties aforesaid here, until the morrow of All Souls, to hear their judgment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said Charles as the said William, by their said attorneys; and because the said justices here will farther advise themselves of and upon the premises before they give judgment thereupon, a day is farther given to the parties aforesaid here until the octave of Saint Hilary, to hear their judgment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said William Burton as the said Charles Long,Opinion of the court. by their said attorneys. Wherefore, the record and matters aforesaid having been seen, and by the justices here fully understood, and all and singular the premises being examined, and mature deliberation being had thereupon;Replication insufficient. for that it seems to the said justices here that the said plea of the said William Burton before in his replication pleaded, and the matter therein contained, are not sufficient in law to have and maintain the action of the aforesaid William against the aforesaid Charles; therefore it is considered, that the aforesaid William **xxv.]take nothing by his writ aforesaid, but that he and his pledges of prosecuting, to wit, John Doe and Richard Roe, be in mercy for his false complaint; and that the aforesaid Charles go thereof without a day, &c. And it is farther considered,Judgment for the defendant Querens nihil capiat per breve. Amercement. that the aforesaid Charles do recover against the aforesaid William eleven pounds and seven shillings, for his costs and charges by him about his defence in this behalf sustained, adjudged by the court here to the said Charles with his consent, according to the form of the statute in that case made and provided: and that the aforesaid Charles may have execution thereof, &c.Costs.

Afterwards, to wit, on Wednesday next after fifteen days of Easter in this same term, before the Lord the King, at Westminster, comes the aforesaid William Burton,Execution. General error assigned. by Peter Manwaring, his attorney, and saith, that in the record and process aforesaid, and also in the giving of the judgment in the plaint aforesaid, it is manifestly erred in this, to wit, that the judgment aforesaid was given in form aforesaid for the said Charles Long against the aforesaid William Burton, where, by the law of the land, judgment should have been given for the said William Burton against the said Charles Long; and this he is ready to verify.Writ of scire facias, to hear errors.And the said William prays the writ of the said Lord the King, to warn the said Charles Long to be before the said Lord the King, to hear the record and process aforesaid; and it is granted unto him; by which the sheriff aforesaid is commanded that by good [and lawful men of his bailiwick] he cause the aforesaid Charles Long to know that he be before the Lord the King from the day of Easter in five weeks, wheresoever [he shall then be in England,] to hear the record and process aforesaid, if [it shall have happened that in the same any error shall have intervened;] and further [to do and receive what the court of the Lord the King shall consider in this behalf.] The same day is given to the aforesaid William Burton. At which day before the Lord the King,Sheriff’s return Scire feci. at Westminster, comes the aforesaid William Burton, by his attorney aforesaid; and the sheriff returns, that by virtue of the writ aforesaid to him directed he had caused the said Charles Long to know that he be before the Lord the King at the time aforesaid in the said writ contained, by John Den and Richard Fen, good, &c., as by the same writ was commanded him; which said Charles Long, according to the warning given him in this behalf, here cometh by Thomas Webb, his attorney.Error as signed afresh.Whereupon the said William saith, that in the record and process aforesaid, and also in the giving of the judgment aforesaid, it is manifestly erred, alleging the error aforesaid by him in the form aforesaid alleged, and prays that the judgment aforesaid for the error aforesaid, and others, in the record and process aforesaid being may be reversed, annulled, and entirely for nothing esteemed, and that the said Charles *[*XXVI. may rejoin to the errors aforesaid, and that the court of the said Lord the King here may proceed to the examination as well of the record and process aforesaid as of the matter aforesaid above for error assigned.Rejoinder In nullo est erratum.And the said Charles saith, that neither in the record and process aforesaid, nor in the giving of the judgment aforesaid, in any thing is there erred; and he prays in like manner that the court of the said Lord the King here may proceed to the examination as well of the record and process aforesaid as of the matters aforesaid above for error assigned.Continuance.And because the court of the Lord the King here is not yet advised what judgment to give of and upon the premises, a day is thereof given to the parties aforesaid until the morrow of the Holy Trinity, before the Lord the King, wheresoever he shall then be in England, to hear their judgment of and upon the premises, for that the court of the Lord the King here is not yet advised thereof. At which day before the Lord the King, at Westminster,Opinion of the court. come the parties aforesaid by their attorneys aforesaid. Whereupon, as well the record and process aforesaid, and the judgment thereupon given, as the matters aforesaid by the said William above for error assigned, being seen, and by the court of the Lord the King here being fully understood, and mature deliberation being thereupon had, for that it appears to the court of the Lord the King here, that in the record and process aforesaid, and also in the giving of the judgment aforesaid,Judgment of the Common Pleas reversed. Judgment for the plaintiff. it is manifestly erred, therefore it is considered that the judgment aforesaid, for the error aforesaid, and others, in the record and process aforesaid, be reversed, annulled, and entirely for nothing esteemed; and that the aforesaid William recover against the aforesaid Charles his debt aforesaid, and also fifty pounds for his damages which he hath sustained,Costs. as well on occasion of the detention of the said debt, as for his costs and charges unto which he hath been put about his suit in this behalf,Defendant amerced. to the said William with his consent by the court of the Lord the King here adjudged. And the said Charles in mercy.

Sect. 7.

Process of Execution.

George the Second, by the grace of God,Writ of capias ad satisfaciendum. of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. We command you that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before us in three weeks from the day of the Holy Trinity, wheresoever we shall then be in England, to satisfy William Burton for two hundred pounds debt, which the said William Burton hath lately recovered against him in our court before us, and also fifty pounds, which were *[*xxviiadjudged in our said court before us to the said William Burton for his damages which he hath sustained, as well by occasion of the detention of the said debt as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have you there then this writ. Witness Sir Thomas Denison,5 Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign.

Sheriff’s return. [Editor: illegible character] corpus. By virtue of this writ to me directed, I have taken the body of the within-named Charles Long, which I have ready before the Lord the King at Westminster, at the day within written, as within it is commanded me.

Writ of fieri facias..George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. We command you that of the goods and chattels within your bailiwick of Charles Long, late of Burford, gentleman, you cause to be made two hundred pounds debt, which William Burton lately in our court before us at Westminster hath recovered against him, and also fifty pounds, which were adjudged in our court before us to the said William for his damages which he hath sustained, as well by occasion of the detention of his said debt as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have that money before us in three weeks from the day of the Holy Trinity, wheresoever we shall then be in England, to render to the said William of his debt and damages aforesaid; and have there then this writ. Witness Sir Thomas Denison, Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign.

Sheriff’s return. [Editor: illegible character] feci. By virtue of this writ to me directed, I have caused to be made of the goods and chattels of the within-written Charles Long two hundred and fifty pounds, which I have ready before the Lord the King at Westminster, at the day within written, as it is within commanded me.

BOOK THE FOURTH.

Of Public Wrongs.

CHAPTER I.

OF THE NATURE OF CRIMES, AND THEIR PUNISHMENT.

We are now arrived at the fourth and last branch of these commentaries, which treats of public wrongs, or crimes and misdemesnours. For we may remember that, in the beginning of the preceding book,(a) wrongs were divided into two species: the one private, and the other public. Private wrongs, which are frequently termed civil injuries, were the subject of that entire book: we are now therefore, lastly, to proceed to the consideration of public wrongs, or crimes and misdemesnours; with the means of their prevention and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt as principals, or accessaries; *[*2fourthly, the several species of crimes, with the punishment annexed to each by the laws of England; fifthly, the means of preventing their perpetration; and, sixthly, the method of inflicting those punishments which the law has annexed to each several crime and misdemesnour.

First, as to the general nature of crimes, and their punishment; the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us in England, the doctrine of the pleas of the crown; so called because the king, in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is therefore in all cases the proper prosecutor for every public offence.(b)

The knowledge of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual in the state. For (as a very great master of the crown-law(c) has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude that he may not at some time or other be deeply interested in these researches. The infirmities of the best among us, the vices and ungovernable passions of others, the instability of all human affairs, and the numberless unforeseen events which the compass of a day may bring forth, will teach us (upon a moment’s reflection) that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern.

In proportion to the importance of the criminal law ought also to be the care and attention of the legislature in properly forming and enforeing it. It should be founded upon principles that are permanent, uniform, **3]and universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind: though it sometimes (provided there be no transgression of these external boundaries) may be modified, uarrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge; from retaining the discordant political regulations, which successive conquerors or factions have established in the various revolutions of government; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence: from some, or from all, of these causes, it hath happened that the criminal law is in every country of Europe more rude and imperfect than the civil. I shall not here enter into any minute inquiries concerning the local constitutions of other nations; the inhumanity and mistaken policy of which have been sufficiently pointed out by ingenious writers of their own.(d) But even with us in England, where our crown law is with justice supposed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; where all our accusations are public, and our **4]trials in the face of the world; where torture is unknown, and every delinquent is judged by such of his equals against whom he can form no exception nor even a personal dislike;—even here we shall occasionally find room to remark some particulars that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete or absurd; and from too little care and attention in framing and passing new ones. The enacting of penalties, to which a whole nation should be subject, ought not to be left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons who know what provisions the laws have already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion or prejudice how adequate they are to the evil. It is never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges and hearing their report thereon.(e) And surely equal precaution is necessary when laws are to be established which may affect the property, the liberty, and perhaps even the lives of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime to break down (however maliciously) the mound of a fish-pond, whereby any fish shall escape; or to cut down a cherry-tree in an orchard.(f)1 Were even a committee appointed but once in a hundred years to revise the criminal law, it could not have continued to this hour a felony, without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians.(g)2

It is true that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public; *[*5but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles; and it is the duty of such a one to hint them with decency to those whose abilities and stations enable them to apply the remedy.3 Having therefore premised this apology for some of the ensuing remarks, which might otherwise seem to savour of arrogance, I proceed now to consider (in the first place) the general nature of crimes.

I. A crime or misdemeanour is an act committed or omitted, in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours, which, properly speaking, are mere synonymous terms; though, in common usage, the word “crimes” is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler names of “misdemeanours” only.4

The distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanours, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity. As, if I detain a field from another man, to which the law has given him a right, this is a civil injury, and not a crime; for here only the right of an individual is concerned, and it is immaterial to the public which of us is in possession of the land: but treason, murder, and robbery are properly ranked among crimes, since, besides the injury done to individuals, they strike at the very being of society, which cannot possibly subsist where actions of this sort are suffered to escape with impunity.5

In all cases the crime includes an injury: every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community. **6]Thus, treason in imagining the king’s death involves in it conspiracy against an individual, which is also a civil injury; but, as this species of treason, in its consequences, principally tends to the dissolution of government, and the destruction thereby of the order and peace of society, this denominates it a crime of the highest magnitude. Murder is an injury to the life of an individual; but the law of society considers principally the loss which the state sustains by being deprived of a member, and the pernicious example thereby set for others to do the like. Robbery may be considered in the same view: it is an injury to private property; but, were that all, a civil satisfaction in damages might atone for it; the public mischief is the thing for the prevention of which our laws have made it a capital offence. In these gross and atrocious injuries the private wrong is swallowed up in the public: we seldom hear any mention made of satisfaction to the individual, the satisfaction to the community being so very great. And, indeed, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make any reparation for the private wrong, which can only be had from the body or goods of the aggressor.6 But there are crimes of an inferior nature, in which the public punishment is not so severe but it affords room for a private compensation also; and herein the distinction of crimes from civil injuries is very apparent. For instance: in the case of battery, or beating another, the aggressor may be indicted for this at the suit of the king, for disturbing the public peace, and be punished criminally by fine and imprisonment; and the party beaten may also have his private remedy by action of trespass for the injury which he in particular sustains, and recover a civil satisfaction in damages.7 So, also, in case of a public nuisance, as digging a ditch across a highway: this is punishable by indictment as a common offence to the whole kingdom and all his majesty’s subjects; but if any individual sustains any special *[*7damage thereby, as laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong.

Upon the whole, we may observe that, in taking cognizance of all wrongs or unlawful acts, the law has a double view, viz.: not only to redress the party injured by either restoring to him his right, if possible, or by giving him an equivalent, the manner of doing which was the object of our inquiries in the preceding book of these commentaries, but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws which the sovereign power has thought proper to establish for the government and tranquillity of the whole. What those breaches are, and how prevented or punished, are to be considered in the present book.

II. The nature of crimes and misdemeanours in general being thus ascertained and distinguished, I proceed, in the next place, to consider the general nature of punishments, which are evils or inconveniences consequent upon crimes and misdemeanours; being devised, denounced, and inflicted, by human laws, in consequence of disobedience or misbehaviour in those to regulate whose conduct such laws were respectively made. And herein we will briefly consider the power, the end, and the measure, of human punishment.

1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanours(h) It is clear that the right of punishing crimes against the law of nature, as murder, and the like, is, in a state of mere nature, vested in every individual. For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution: and, if that power is vested in any one, it must also be vested in all mankind, *[*8since all are by nature equal. Whereof the first murderer, Cain, was so sensible, that we find him(i) expressing his apprehensions that whoever should find him would slay him. In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy. Whatever power, therefore, individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone, who bears the sword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which some have argued to belong to every state, (though, in fact, never exercised by any,) of punishing not only their own subjects, but also foreign ambassadors, even with death itself, in case they have offended, not indeed against the municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guilt.(k)

As to offences merely against the laws of society, which are only mala prohibita, and not mala in se, the temporal magistrate is also empowered to inflict coercive penalties for such transgressions, and this by the consent of individuals who, in forming societies, did either tacitly or expressly invest the sovereign power with the right of making laws, and of enforcing obedience to them when made by exercising, upon their non-observance, severities adequate to the evil. The lawfulness, therefore, of punishing such criminals, is founded upon this principle, that the law by which they suffer was made by their own consent: it is a part of the original contract into which they entered when first they engaged in society; it was calculated for, and has long contributed to, their own security.

This right, therefore, being thus conferred by universal consent, gives to the state exactly the same power, and no more, over all its members, as each individual member had naturally over himself or others, which has **9]occasioned some to doubt how far a human legislature ought to inflict capital punishments for positive offences,—offences against the municipal law only, and not against the law of nature,—since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as in the case of murder, by the precept delivered to Noah, their common ancestor and representative, “whoso sheddeth man’s blood, by man shall his blood be shed.”(l) In other instances they are inflicted after the example of the Creator in his positive code of laws for the regulation of the Jewish republic; as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are principally to speak, as these crimes are none of them offences against natural, but only against social rights, not even theft itself, unless it be accompanied with violence to one’s house or person; all others being an infringement of that right of property which, as we have formerly seen,(m) owes its origin not to the law of nature, but merely to civil society.8

The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, Sir Matthew Hale:(n) “When offences grow enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment, and even death itself, is necessary to be annexed to laws in many cases by the prudence of lawgivers.” It is therefore the enormity or dangerous tendency of the crime that alone can warrant any earthly legislature in putting him to death that commits it. **10]It is not its frequency only, or the difficulty of otherwise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences or such as are merely positive. He will expect a better reason for his so doing than that loose one which generally is given,—that it is found by former experience that no lighter penalty will be effectual. For is it found upon further experience that capital punishments are more effectual? Was the vast territory of all the Russias worse regulated under the late empress Elizabeth than under her more sanguinary predecessors? Is it now, under Catherine III., less civilized, less social, less secure? And yet we are assured, that neither of these illustrious princesses have, throughout their whole administration, inflicted the penalty of death; and the latter has, upon full persuasion of its being useless, nay, even pernicious, given orders for abolishing it entirely throughout her extensive dominions.(o) But, indeed, were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occasions when other expedients fail. I fear this reasoning would extend a great deal too far. For instance, the damage done to our public roads by loaded wagons is universally allowed, and many laws have been made to prevent it; none of which have hitherto proved effectual. But it does not therefore follow that it would be just for the legislature to inflict death upon every obstinate carrier who defeats or eludes the provision of former statutes. Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of *[*11conscience and humanity. To shed the blood of our fellow-creature is a matter that requires the greatest deliberation and the fullest conviction of our own authority: for life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of Him who gave it; either expressly revealed, or collected from the laws of nature or society by clear and undisputable demonstration.

I would not be understood to deny the right of the legislature in any country to enforce its own laws by the death of the transgressor, though persons of some abilities have doubted it; but only to suggest a few hints for the consideration of such as are, or may hereafter become, legislators. When a question arises, whether death may be lawfully inflicted for this or that transgression, the wisdom of the laws must decide it; and to this public judgment or decision all private judgments must submit; else there is an end of the first principle of all society and government. The guilt of blood, if any, must lie at their doors who misinterpret the extent of their warrant, and not at the doors of the subject, who is bound to receive the interpretations that are given by the sovereign power.

2. As to the end or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the Supreme Being; but as a precaution against future offences of the same kind. This is effected three ways: either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted; or by deterring others by the dread of his example from offending in the like way, “ut pœna (as Tully(p) expresses it) ad paucos, metus ad omnes perveniat;” which gives rise to all ignominious punishments, and to such executions of justice as are open and public: *[*12or, lastly, by depriving the party injuring of the power to do future mischief; which is effected by either putting him to death, or condemning him to perpetual confinement, slavery, or exile. The same one end of preventing future crimes is endeavoured to be answered by each of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholesome correction, or whether he be disabled from doing any further harm; and if the penalty fails of both these effects, as it may do, still, the terror of his example remains as a warning to other citizens. The method, however, of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it: therefore the pains of death, and perpetual disability by exile, slavery, or imprisonment, ought never to be inflicted but when the offender appears incorrigible: which may be collected either from a repetition of minuter offences, or from the perpetration of some one crime of deep malignity which of itself demonstrates a disposition without hope or probability of amendment: and in such cases it would be cruelty to the public to defer the punishment of such a criminal till he had an opportunity of repeating perhaps the worst of villanies.

3. As to the measure of human punishments. From what has been observed in the former articles, we may collect, that the quantity of punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offences.

Hence it will be evident that what some have so highly extolled for its equity, the lex talionis, or law of retaliation, can never be in all cases an adequate or permanent rule of punishment. In some cases indeed it seems to be dictated by natural reason; as in the case of conspiracies to do an injury, or false accusations of the innocent; to which we may add that law of the Jews and Egyptians, mentioned by **13]Josephus and Diodorus Siculus, that whoever without sufficient cause was found with any mortal poison in his custody should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances may enhance or mitigate the offence; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see that if a court of justice awards a return of the blow it is more than a just compensation. On the other hand, retaliation may sometimes be too easy a sentence; as, if a man maliciously should put out the remaining eye of him who had lost one before, it is too slight a punishment for the maimer to lose only one of his: and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered by decreeing, in imitation of Solon’s laws,(q) that he who struck out the eye of a one-eyed man should lose both his own in return. Besides, there are very many crimes that will in no shape admit of these penalties without manifest absurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. And we may add, that those instances, wherein retaliation appears to be used, even by the divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the same hurt he has done to his neighbour, and no more; but this correspondence between the crime and punishment is barely a consequence from some other principle. Death is ordered to be punished with death; not because one is equivalent to the other, for that would be expiation, and not punishment. Nor is death always an equivalent for death: the execution of a needy decrepit assassin is a poor satisfaction for the murder of a nobleman in the bloom of his youth and full enjoyment of his friends, his honours, and his fortune. But the reason upon which this sentence is grounded seems to be that this is the highest penalty that man can inflict, **14]and tends most to the security of mankind, by removing one murderer from the earth and setting a dreadful example to deter others; so that even this grand instance proceeds upon other principles than those of retaliation. And truly, if any measure of punishment is to be taken from the damage sustained by the sufferer, the punishment ought rather to exceed than equal the injury: since it seems contrary to reason and equity that the guilty (if convicted) should suffer no more than the innocent has done before him; especially as the suffering of the innocent is past and irrevocable, that of the guilty is future, contingent, and liable to be escaped or evaded. With regard indeed to crimes that are incomplete, which consist merely in the intention, and are not yet carried into act, as conspiracies and the like, the innocent has a chance to frustrate or avoid the villany, as the conspirator has also a chance to escape his punishment; and this may be one reason why the lex talionis is more proper to be inflicted, if at all, for crimes that consist in intention, than for such as are carried into act. It seems, indeed, consonant to natural reason, and has therefore been adopted as a maxim by several theoretical writers,(r) that the punishment due to the crime of which one falsely accuses another should be inflicted on the perjured informer. Accordingly, when it was once attemped to introduce into England the law of retaliation, it was intended as a punishment for such only as preferred malicious accusations against others; it being enacted, by statute 37 Edw. III. ch. 18, that such as preferred any suggestions to the king’s great council should put in sureties of taliation; that is, to incur the same pain that the other should have had in case the suggestion were found untrue. But after one year’s experience, this punishment of taliation was rejected, and imprisonment adopted in its stead.(s)

But though from what has been said it appears that there cannot be any regular or determinate method of rating the *[*15quantity of punishments for crimes by any one uniform rule, but they must be referred to the will and discretion of the legislative power: yet there are some general principles, drawn from the nature and circumstances of the crime, that may be of some assistance in allotting it an adequate punishment.

As, first, with regard to the object of it; for the greater and more exalted the object of an injury is, the more care should be taken to prevent that injury, and, of course, under this aggravation the punishment should be more severe. Therefore treason in conspiring the king’s death is by the English law punished with greater rigour than even actually killing any private subject. And yet, generally, a design to transgress is not so flagrant an enormity as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking; so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it: and it is an encouragement to repentance and remorse, even till the last stage of any crime, that it never is too late to retract; and that if a man stops even here, it is better for him than if he proceeds: for which reason, an attempt to rob, to ravish, or to kill, is far less penal than the actual robbery, rape, or murder. But in the case of a treasonable conspiracy, the object whereof is the king’s majesty, the bare intention will deserve the highest degree of severity; not because the intention is equivalent to the act itself, but because the greatest rigour is no more than adequate to a treasonable purpose of the heart, and there is no greater left to inflict upon the actual execution itself.

Again: the violence of passion, or temptation, may sometimes alleviate a crime; as theft, in case of hunger, is far more worthy of compassion than when committed through avarice, or to supply one in luxurious excesses. To kill a man upon sudden and violent resentment is less penal than upon cool, deliberate malice. The age, education, and character of the offender: the repetition (or otherwise) *[*16of the offence; the time, the place, the company, wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime.(t)

Further: as punishments are chiefly intended for the prevention of future crimes, it is but reasonable that among crimes of different natures those should be most severely punished which are the most destructive of the public safety and happiness;(u) and, among crimes of an equal malignity, those which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others, and which therefore the offender has the strongest inducement to commit; according to what Cicero observes,(v) “ea sunt animadvertenda peccata maxime, quæ difficillime præcaventur.” Hence it is, that for a servant to rob his master is in more cases capital than for a stranger; if a servant kills his master, it is a species of treason;9 in another it is only murder; to steal a handkerchief, or other trifle of above the value of twelve pence, privately from one’s person, is made capital;10 but to carry off a load of corn from an open field, though of fifty times greater value, is punished with transportation only. And in the island of Man this rule was formerly carried so far that to take away a horse or an ox was there no felony, but a trespass, because of the difficulty in that little territory to conceal them or carry them off; but to steal a pig or a fowl, which is easily done, was a capital misdemeanour, and the offender was punished with death.(w)

Lastly: as a conclusion to the whole, we may observe that punishments of unreasonable severity, especially when indiscriminately inflicted, have less effect in preventing crimes and amending the manners of a people than such as are more merciful in general, yet properly intermixed with due **17]distinctions of severity. It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action,(x) that crimes are more effectually prevented by the certainty than by the severity of punishment. For the excessive severity of law (says Montesquieu)(y) hinders their execution: when the punishment surpasses all measure the public will frequently, out of humanity, prefer impunity to it. Thus also the statute 1 Mar. st. 1, c. 1 recites in its preamble “that the state of every king consists more assuredly in the love of the subjects towards their prince than in the dread of laws made with rigorous pains; and that laws made for the preservation of the commonwealth without great penalties are more often obeyed and kept than laws made with extreme punishments.” Happy had it been for the nation if the subsequent practice of that deluded princess, in matters of religion, had been correspondent to these sentiments of herself and parliament in matters of state and government! We may further observe that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished; under the emperors severe punishments were revived; and then the empire fell.11

It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind; yet *[*18that magistrate must be esteemed both a weak and a cruel surgeon who cuts off every limb which, through ignorance or indolence, he will not attempt to cure. It has been therefore ingeniously proposed,(z) that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least; but, if that be too romantic an idea, yet at least a wise legislator will mark the principal divisions and not assign penalties of the first degree to offences of an interior rank. Where men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the same;(a) hence it is that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder.12 In China murderers are cut to pieces, and robbers not; hence in that country they never murder on the highway, though they often rob. And in England, besides the additional terrors of a speedy execution and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers. This has the same effect here as in China; in preventing frequent assassination and slaughter.

Yet, though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein, inflicted (perhaps inattentively) by a multitude of successive independent statutes upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament(b) to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. *[*19The injured, through compassion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence; and judges, through compassion, will respite one-half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer: he boldly engages in some desperate attempt to relieve his wants or supply his vices, and if, unexpectedly, the hand of justice overtakes him, he deems himself peculiarly unfortunate in falling at last a sacrifice to those laws which long impunity has taught him to contemn.

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

Having in the preceding chapter considered in general the nature of crimes and punishments, we are led next, in the order of our distribution, to inquire what persons are or are not capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts which, in other persons, would be severely punished. In the process of which inquiry, we must have recourse to particular and special exceptions; for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.

All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt: the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing **21]that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. For, though, in foro conscientiæ, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason, in all temporal jurisdictions, an overt act, or some open evidence of an intended crime, is necessary, in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that, to constitute a crime against human laws, there must be first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.

Now, there are three cases in which the will does not join with the act 1. Where there is a defect of understanding. For where there is no discernment there is no choice, and where there is no choice there can be no act of the will, which is nothing else but a determination of one’s choice to do or to abstain from a particular action: he, therefore, that has no understanding can have no will to guide his conduct. 2. Where there is understanding and will sufficient residing in the party, but not called forth or exerted at the time of the action done; which is the case of all offences committed by chance or ignorance. Here the will sits neuter, and neither concurs with the act nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed, and is so far from concurring with, that it loathes and disagrees to, what the man is obliged to perform. It will be the business of the present chapter briefly to consider all the several species of defect in will, as they fall under some one or other of these general heads: as infancy, idiocy, lunacy, and intoxication, which fall under the first class; misfortune and ignorance, which **22]may be referred to the second; and compulsion or necessity, which may properly rank in the third.

I. First we will consider the case of infancy, or nonage, which is a defect of the understanding. Infants under the age of discretion ought not to be punished by any criminal prosecution whatever.(a) What the age of discretion is, in various nations, is matter of some variety. The civil law distinguished the age of minors, or those under twenty-five years old, into three stages: infantia, from the birth till seven years of age; pueritia, from seven to fourteen; and pubertas, from fourteen upwards. The period of pueritia, or childhood, was again subdivided into two equal parts: from seven to ten and a half was ætas infantiæ proxima; from ten and a half to fourteen was ætas pubertati proxima. During the first stage of infancy and the next half-stage of childhood, infantiæ proxima, they were not punishable for any crime.(b) During the other half-stage of childhood, approaching to puberty, from ten and a half to fourteen, they were indeed punishable, if found to be doli capaces, or capable of mischief, but with many mitigations, and not with the utmost rigour of the law.(c) During the last stage, (at the age of puberty, and afterwards,) minors were liable to be punished, as well capitally as otherwise.

The law of England does in some cases privilege an infant under the age of twenty-one, as to common misdemeanours, so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offences;(d) for, not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. But where there is any notorious breach of the peace, a riot, battery, or the like, (which infants, when full grown, are at least as liable as others to commit,) for these an infant, above *[*23the age of fourteen, is equally liable to suffer as a person of the full age of twenty-one.

With regard to capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion. By the antient Saxon law, the age of twelve years was established for the age of possible discretion, when first the understanding might open;(e) and from thence till the offender was fourteen it was ætas pubertati proxima, in which he might or might not be guilty of a crime, according to his natural capacity or incapacity. This was the dubious stage of discretion: but under twelve it was held that he could not be guilty in will, neither after fourteen could he be supposed innocent, of any capital crime which he in fact committed. But by the law, as it now stands, and has stood at least ever since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days as by the strength of the delinquent’s understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is, that “malitia supplet ætatem.” Under seven years of age, indeed, an infant cannot be guilty of felony,(f) for then a felonious discretion is almost an impossibility in nature; but at eight years old he may be guilty of felony.(g) Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax, yet if it appear to the court and jury that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burned for killing her mistress: and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared, upon their trials, that the one hid himself, and the other hid the body he had killed, which hiding manifested a consciousness of guilt, and a discretion *[*24to discern between good and evil.(h) And there was an instance in the last century where a boy of eight years old was tried at Abingdon for firing two barns; and, it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly.(i) Thus, also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behaviour plain tokens of a mischievous discretion; and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment.(j) But, in all such cases, the evidence of that malice which is to supply age ought to be strong and clear beyond all doubt and contradiction.1

II. The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is, that “furiosus furore solum punitur.” In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself.(k)2 Also, if a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged **25]something in stay of judgment or execution.(l) Indeed, in the bloody reign of Henry the Eighth a statute was made,(m) which enacted that if a person, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. For, as is observed by Sir Edward Coke,(n) “the execution of an offender is for example, ut pœna ad paucos, metus ad omnes perveniat: but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others.” But if there be any doubt whether the party be compos or not, this shall be tried by a jury.3 And if he be so found, a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses: but, if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency.(o)4 Yet, in the case of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting, unless under proper control; and, in particular, they ought not to be suffered to go loose, to the terror of the king’s subjects. It was the doctrine of our antient law, that persons deprived of their reason might be confined till they recovered their senses,(p) without waiting for the forms of a commission or other special authority from the crown: and now, by the vagrant acts,(q) a method is chalked out for imprisoning, chaining, and sending them to their proper homes.

III. Thirdly: as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy: our law looks upon this as an aggravation of the offence, rather *[*26than as an excuse for any criminal misbehaviour. A drunkard, says Sir Edward Coke,(r) who is voluntarius dœmon, hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas, et incendit, et detegit. It hath been observed that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of the climate in which we live. The same indulgence which may be necessary to make the blood move in Norway would make an Italian mad. A German, therefore, says the president Montesquieu,(s) drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, or out of the mere wantonness of luxury: and drunkenness, he adds, ought to be more severely punished where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries. And, accordingly, in the warm climate of Greece, a law of Pittacus enacted “that he who committed a crime when drunk should receive a double punishment;” one for the crime itself, and the other for the obriety which prompted him to commit it.(t) The Roman law, indeed, made great allowances for this vice: “per vinum delapsis capitalis pœna remittitur.”(u) But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, (though real,) will not suffer any man thus to privilege one crime by another.(w)5

IV. A fourth deficiency of will is where a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this, when it affects the life of another, we shall find more occasion to speak hereafter, at present only observing that, if any accidental mischief **27]happens to follow from the performance of a lawful act, the party stands excused from all guilt; but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man, or the like, his want of foresight shall be no excuse; for, being guilty of one offence in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.(x)6

V. Fifthly: ignorance or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here, the deed and the will acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake of fact, and not an error, in point of law. As if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this is no criminal action;(y) but if a man thinks he has a right to kill a person excommunicated or outlawed wherever he meets him, and does so, this is wilful murder. For a mistake in point of law, which every person of discretion not only may but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own law,(z) as it was of the Roman.(a)7

VI. A sixth species of defect of will is that arising from compulsion and inevitable necessity. These are a constraint upon the will whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are therefore only inflicted for the abuse of that free will which God has given to man, it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion.

*[*281. Of this nature, in the first place, is the obligation of civil subjection, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest; as when a legislator establishes iniquity by a law and commands the subject to do an act contrary to religion or sound morality. How far this excuse will be admitted in foro conscientiæ, or whether the inferior in this case is not bound to obey the divine rather than the human law, it is not my business to decide; though the question, I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff who burned Latimer and Ridley, in the bigoted days of queen Mary, was not liable to punishment from Elizabeth for executing so horrid an office; being justified by the commands of that magistracy, which endeavoured to restore superstition under the holy auspices of its merciless sister, persecution.

As to persons in private relations: the principal case, where constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband; for neither a son nor a servant are excused for the commission of any crime, whether capital or otherwise, by the command or coercion of the parent or master;(b) though in some cases the command or authority of the husband, either expressed or implied, will privilege the wife from punishment even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against the laws of society by the coercion of her husband; or even in his company, which the law construes a coercion; she is not guilty of any crime; being considered as acting by compulsion and not of her own will.(c)8 Which doctrine is at least a thousand years old in this kingdom, being to be found among the laws of king *[*29Ina, the West Saxon.(d) And it appears that among the northern nations on the continent this privilege extended to any woman transgressing in concert with a man, and to any servant that committed a joint offence with a freeman; the male or freeman only was punished, the female or slave dismissed: “procul dubio quod alterum libertas, alterum necessitas impelleret.”(e) But (besides that in our law, which is a stranger to slavery, no impunity is given to servants, who are as much free agents as their masters) even with regard to wives, this rule admits of an exception in crimes that are mala in se, and prohibited by the law of nature, as murder and the like:9 not only because these are of a deeper dye, but also, since in a state of nature no one is in subjection to another, it would be unreasonable to screen an offender from the punishment due to natural crimes by the refinements and subordinations of civil society. In treason, also, (the highest crime which a member of society can as such be guilty of,) no plea of coverture shall excuse the wife; no presumption of the husband’s coercion shall extenuate her guilt:(f) as well because of the odiousness and dangerous consequences of the crime itself, as because the husband, having broken through the most sacred tie of social community by rebellion against the state, has no right to that obedience from a wife, which he himself as a subject has forgotten to pay. In inferior misdemeanours also we may remark another exception: that a wife may be indicted, and set in the pillory with her husband, for keeping a brothel;10 for this is an offence touching the domestic economy or government of the house, in which the wife has a principal share; and is also such an offence as the law presumes to be generally conducted by the intrigues of the female sex.(g)11 And in all cases where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence as much as any feme-sole.

**30]2. Another species of compulsion or necessity is what our law calls duress per minas;(h) or threats and menaces which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanours; at least, before the human tribunal. But then that fear which compels a man to do an unwarrantable action ought to be just and well grounded, such “qui cadere possit in virum constantem, non timidum, et meticulosum,” as Bracton expresses it(i) in the words of the civil law.(k) Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels which would admit of no excuse in time of peace.(l)12 This, however, seems only, or at least principally, to hold as to positive crimes, so created by the laws of society, and which therefore society may excuse; but not as to natural offences so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore, though a man be violently assaulted, and hath no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent.(m) But, in such a case, he is permitted to kill the assailant; for there the law of nature, and self-defence, its primary canon, have made him his own protector.

3. There is a third species of necessity, which may be distinguished from the actual compulsion of external force or fear; being the result of reason and reflection which act upon and constrain a man’s will, and oblige him to do an action which, without such obligation, would be criminal. And that is, when a man has his choice of two evils set before him, and being under a necessity of choosing one, he chooses the *[*31least pernicious of the two. Here the will cannot be said freely to exert itself, being rather passive than active; or, if active, it is rather in rejecting the greater evil than in choosing the less. Of this sort is that necessity where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority: it is here justifiable, and even necessary, to beat, to wound, or perhaps to kill the offenders, rather than permit the murderer to escape, or the riot to continue. For the preservation of the peace of the kingdom, and the apprehending of notorious malefactors, are of the utmost consequence to the public; and therefore excuse the felony which the killing would otherwise amount to.(n)

4. There is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz., whether a man in extreme want of food or clothing may justify stealing either, to relieve his present necessities? And this both Grotius(o) and Puffendorf,(p) together with many other of the foreign jurists, hold in the affirmative; maintaining, by many ingenious, humane, and plausible reasons, that in such cases the community of goods, by a kind of tacit confession of society, is revived. And some even of our own lawyers have held the same,(q) though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians; at least it is now antiquated, the law of England admitting no such excuse at present.(r) And this its doctrine is agreeable not only to the sentiments of many of the wisest antients, particularly Cicero,(s) who holds that “suum cuique incommodum ferendum est, potius quam de alterius commodis detrahendum,” but also to the Jewish law, as certified by king Solomon himself:(t) “If a thief steal to satisfy his soul when he is hungry, he shall restore *[*32sevenfold, and shall give all the substance of his house:” which was the ordinary punishment for theft in that kingdom. And this is founded upon the highest reason: for men’s properties would be under a strange insecurity if liable to be invaded according to the wants of others, of which wants no man can possibly be an adequate judge but the party himself who pleads them. In this country especially there would be a peculiar impropriety in admitting so dubious an excuse; for by our laws such sufficient provision is made for the poor by the power of the civil magistrate, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. This case of a stranger is, by the way, the strongest instance put by baron Puffendorf, and whereon he builds his principal arguments: which, however they may hold upon the continent, where the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a system and interwoven in our very constitution. Therefore our laws ought by no means to be taxed with being unmerciful for denying this privilege to the necessitous; especially when we consider that the king, on the representation of his ministers of justice, hath a power to soften the law and to extend mercy in cases of peculiar hardship. An advantage which is wanting in many states, particularly those which are democratical; and these have, in its stead, introduced and adopted in the body of the law itself a multitude of circumstances tending to alleviate its rigour. But the founders of our constitution thought it better to vest in the crown the power of pardoning particular objects of compassion than to countenance and establish theft by one general undistinguishing law.

VII. To these several cases, in which the incapacity of committing crimes arises from a deficiency of the will, we may add one more, in which the law supposes an incapacity of doing wrong, from the excellence and perfection of the *[*33person; which extend as well to the will as to the other qualities of his mind. I mean the case of the king; who, by virtue of his royal prerogative, is not under the coercive power of the law;(u) which will not suppose him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency, to forbear any idle inquiries of what would be the consequence if the king were to act thus and thus: since the law deems so highly of his wisdom and virtue as not even to presume it possible for him to do any thing inconsistent with his station and dignity; and therefore has made no provision to remedy such a grievance. But of this sufficient was said in a former volume,(v) to which I must refer the reader.

CHAPTER III.

OF PRINCIPALS AND ACCESSORIES.

**34]It having been shown in the preceding chapter what persons are, or are not, upon account of their situation and circumstances, capable of committing crimes, we are next to make a few remarks on the different degrees of guilt among persons that are capable of offending, viz.: as principal, and as accessory.

I. A man may be principal in an offence in two degrees. A principal in the first degree is he that is the actor or absolute perpetrator of the crime; and in the second degree he is who is present, aiding and abetting the fact to be done.(a) Which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder and another keeps watch or guard at some convenient distance.(b)1 And this rule hath also other exceptions: for, in case of murder by poisoning, a man may be a principal felon by preparing and laying the poison, or persuading another to drink it(c) who is ignorant of its poisonous quality,(d) or giving it to him for that purpose, and yet not administer it himself, nor be present when the very deed of poisoning is committed.(e) And the same reasoning will hold with regard to other murders committed in the absence *[*35of the murderer by means which he had prepared beforehand, and which probably could not fail of their mischievous effect. As by laying a trap or pitfall for another, whereby he is killed, letting out a wild beast, with an intent to do mischief, or inciting a madman to commit murder, so that death thereupon ensues; in every of these cases the party offending is guilty of murder as a principal, in the first degree. For he cannot be called an accessory, that necessarily presupposing a principal; and the poison, the pitfall, the beast, or the madman cannot be held principals, being only the instruments of death. As therefore he must be certainly guilty either as principal or accessory, and cannot be so as accessory, it follows that he must be guilty as principal, and, if principal, then in the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist.(f)

II. An accessory is he who is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will first examine what offences admit of accessories, and what not; secondly, who may be an accessory before the fact; thirdly, who may be an accessory after it; and lastly, how accessories, considered merely as such, and distinct from principals, are to be treated.

1. And, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals: the same acts that make a man accessory in felony making him a principal in high treason, upon account of the heinousness of the crime.(g) Besides, it is to be considered, that the bare intent to commit treason is many times actual treason; as imagining the death of the king, or conspiring to take away his crown. And, as no one can advise and abet such a crime without an intention to have it done, there can be no accessories before the fact; since the *[*36very advice and abetment amount to principal treason. But this will not hold in the inferior species of high treason, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor.(h) In petit treason, murder, and felonies with or without benefit of clergy,2 there may be accessories; except only in those offences which by judgment of law are sudden and unpremeditated, as manslaughter and the like, which therefore cannot have any accessories before the fact.(i) So too in petit larceny, and in all crimes under the degree of felony, there are no accessories either before or after the fact, but all persons concerned therein, if guilty at all, are principals:(k) the same rule holding with regard to the highest and lowest offences, though upon different reasons. In treason all are principals propter odium delicti; in trespass all are principals because the law, quæ de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemeanours. It is a maxim that accessorius sequitur naturam sui principalis:(l) and therefore an accessory cannot be guilty of a higher crime than his principal: being only punished as a partaker of his guilt. So that if a servant instigates a stranger to kill his master, this being murder in the stranger as principal, of course the servant is accessory only to the crime of murder; though, had he been present and assisting, he would have been guilty as principal of petit treason, and the stranger of murder.(m)

2. As to the second point, who may be an accessory before the fact; Sir Matthew Hale(n) defines him to be one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal. If A. then advises B. to kill another, and **37]B. does it in the absence of A., now B. is principal and A. is accessory in the murder. And this holds even though the party killed be not in rerum naturâ at the time of the advice given. As if A., the reputed father, advises B., the mother of a bastard child unborn, to strangle it when born, and she does so; A. is accessory to this murder.(o) And it is also settled(p) that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact. It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act is accessory to all that ensues upon that unlawful act; but is not accessory to any act distinct from the other. As if A. commands B. to beat C., and B. beats him so that he dies: B. is guilty of murder as principal, and A. as accessory.3 But if A. commands B. to burn C.’s house, and he, in so doing, commits a robbery; now A., though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature.(q)4 But if the felony committed be the same in substance with that which is commanded, and only varying in some circumstantial matters; as if, upon a command to poison Titius, he is stabbed or shot, and dies; the commander is still accessory to the murder, for the substance of the thing commanded was the death of Titius, and the manner of its execution is a mere collateral circumstance.(r)

3. An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon.(s) Therefore to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed.(t)5 In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his **38]pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him.(u) So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessory to the felony. But to relieve a felon in gaol with clothes or other necessaries is no offence; for the crime imputable to this species of accessory is the hinderance of public justice, by assisting the felon to escape the vengeance of the law.(v) To buy or receive stolen goods, knowing them to be stolen, falls under none of these descriptions; it was therefore at common law a mere misdemeanour, and made not the receiver accessory to the theft; because he received the goods only and not the felon:(w) but now, by the statutes 5 Anne, c. 31, and 4 Geo. I. c. 11,6 all such receivers are made accessories, (where the principal felony admits of accessories,)(x) and may be transported for fourteen years;7 and, in the case of receiving linen goods stolen from the bleaching-grounds, are, by statute 18 Geo. II. c. 27, declared felons without benefit of clergy.8 In France such receivers are punished with death; and the Gothic constitutions distinguished also three sorts of thieves, “unum qui consilium daret, alterum qui contrectaret, tertium qui receptaret et occuleret; pari pœnæ singulos obnoxios.”(y)

The felony must be complete at the time of the assistance given; else it makes not the assistant an accessory. As, if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent: this does not make him accessory to the homicide; for, till death ensues, there is no felony committed.(z) But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child the parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband relieves his wife, who have any of them committed a *[*39felony, the receivers become accessories ex post facto. But a feme-covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord.(a)

4. The last point of inquiry is how accessories are to be treated, considered distinct from principals. And the general rule of the antient law (borrowed from the Gothic constitutions)(b) is this, that accessories shall suffer the same punishment as their principals: if one be liable to death the other is also liable;(c) as, by the laws of Athens, delinquents and their abettors were to receive the same punishment.(d) Why then, it may be asked, are such elaborate distinctions made between accessories and principals, if both are to suffer the same punishment? For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted; the commission of an actual robbery being quite a different accusation from that of harbouring the robber. 2. Because, though by the antient common law the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made between them: accessories after the fact being still allowed the benefit of clergy in all cases, except horse-stealing,(e) and stealing of linen from bleaching grounds:(f)9 which is denied to the principals and accessories before the fact in many cases; as, among others, in petit treason, murder, robbery, and wilful burning.(g) And perhaps if a distinction were constantly to be made between the punishment of principals and accessories, even before the fact, the latter to be treated with a little less severity than the former, it might prevent the perpetration of many crimes by increasing the difficulty of finding a person to execute the deed itself; as his danger would be greater **40]than that of his accomplices by reason of the difference of his punishment.(h) 3. Because formerly no man could be tried as accessory till after the principal was convicted, or at least he must have been tried at the same time with him; though that law is now much altered, as will be shown more fully in its proper place. 4. Because, though a man be indicted as accessory and acquitted, he may afterwards be indicted as principal; for an acquittal of receiving or counselling a felon is no acquittal of the felony itself; but it is matter of some doubt whether, if a man be acquittal as principal, he can be afterwards indicted as accessory before the fact; since those offences are frequently very nearly allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also.(i) But it is clearly held that one acquitted as principal may be indicted as an accessory after the fact; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other. Upon these reasons the distinction of principal and accessory will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessories as offend before the fact is committed.10

CHAPTER IV.

OF OFFENCES AGAINST GOD AND RELIGION.

**41](k)In the present chapter we are to enter upon the detail of the several species of crimes and misdemeanours, with the punishments annexed to each by the law of England. It was observed in the beginning of this book(a) that crimes and misdemeanours are a breach and violation of the public rights and duties owing to the whole community, considered as a community, in its social aggregate capacity. And in the very entrance of these commentaries(b) it was shown that human laws can have no concern with any but social and relative duties, being intended only to regulate the conduct of man, considered under various relations, as a member of civil society. All crimes ought therefore to be estimated merely according to the mischiefs which they produce in civil society;(c) and of consequence private vices or breach of mere absolute duties, which man is bound to perform considered only as an individual, are not, cannot be, the object of any municipal law any further than as by their evil example, or other pernicious effects, they may prejudice the community and thereby become a species of public crimes. Thus the vice of drunkenness, if committed privately and alone, is beyond the knowledge and of course beyond the reach of human tribunals; but if committed publicly, in the face of the world, its evil example makes it liable to temporal censures. The vice of lying, which consists (abstractedly taken) in a criminal violation of truth, and therefore, in any *[*42shape, is derogatory from sound morality, is not, however, taken notice of by our law unless it carries with it some public inconvenience, as spreading false news; or some social injury, as slander and malicious prosecution, for which a private recompense is given. And yet drunkenness and malevolent lying are in foro conscientiæ as thoroughly criminal when they are not, as when they are, attended with public inconvenience. The only difference is that both public and private vices are subject to the vengeance of eternal justice; and public vices are besides liable to the temporal punishment of human tribunals.

On the other hand: there are some misdemeanours which are punished by the municipal law that have in themselves nothing criminal, but are made unlawful by the positive constitutions of the state for public convenience; such as poaching, exportation of wool, and the like. These are naturally no offences at all; but their whole criminality consists in their disobedience to the supreme power, which has an undoubted right, for the well-being and peace of the community, to make some things unlawful which are in themselves indifferent. Upon the whole, therefore, though part of the offences to be enumerated in the following sheets are offences against the revealed law of God, others against the law of nature, and some are offences against neither; yet in a treatise of municipal law we must consider them all as deriving their particular guilt here punishable from the law of man.

Having premised this caution, I shall next proceed to distribute the several offences, which are either directly or by consequence injurious to civil society, and therefore punishable by the laws of England, under the following general heads: first, those which are more immediately injurious to God and his holy religion; secondly, such as violate and transgress the law of nations; thirdly, such as more especially affect the sovereign executive power of the state, or the king and his government; fourthly, such as more directly *[*43infringe the rights of the public or commonwealth; and lastly, such as derogate from those rights and duties, which are owing to particular individuals, and in the preservation and vindication of which the community is deeply interested.

First, then, of such crimes and misdemeanours as more immediately offend Almighty God, by openly transgressing the precepts of religion, either natural or revealed; and mediately by their bad example and consequence the law of society also; which constitutes that guilt in the action which human tribunals are to censure.

1. Of this species the first is that of apostasy, or a total renunciation of Christianity, by embracing either a false religion or no religion at all. This offence can only take place in such as have once professed the true religion. The perversion of a Christian to Judaism, paganism, or other false religion, was punished by the emperors Constantine and Julian with confiscation of goods;(d) to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity;(e) a punishment too severe for any temporal laws to inflict upon any spiritual offence; and yet the zeal of our ancestors imported it into this country; for we find by Bracton(f) that in his time apostates were to be burnt to death. Doubtless the preservation of Christianity, as a national religion, is, abstracted from its own intrinsic truth, of the utmost consequence to the civil state: which a single instance will sufficiently demonstrate. The belief of a future state of rewards and punishments, the entertaining just ideas of the moral attributes of the Supreme Being, and a firm persuasion that he superintends and will finally compensate every action in human life, (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our Saviour Christ,) these are the grand foundation of all judicial oaths; which call God to witness the truth of those facts, which perhaps may be only known to him and the party attesting; all moral evidence, **44]therefore, all confidence in human veracity, must be weakened by apostasy and overthrown by total infidelity.(g) Wherefore all affronts to Christianity, or endeavours to depreciate its efficacy, in those who have once professed it, are highly deserving of censure. But yet the loss of life is a heavier penalty than the offence, taken in a civil light, deserves; and taken in a spiritual light, our laws have no jurisdiction over it. This punishment therefore has long ago become obsolete; and the offence of apostasy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro salute animæ. But about the close of the last century the civil liberties to which we were then restored being used as a cloak of maliciousness, and the most horrid doctrines, subversive of all religion, being publicly avowed both in discourse and writings, it was thought necessary again for the civil power to interpose by not admitting those miscreants(h) to the privileges of society who maintained such principles as destroyed all moral obligation. To this end it was enacted, by statute 9 & 10 W. III. c. 32, that if any person educated in, or having made profession of, the Christian religion, shall, by writing, printing, teaching, or advised speaking, deny the Christian religion to be true, or the holy scriptures to be of divine authority, he shall upon the first offence be rendered incapable to hold any office or place of trust; and for the second be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and shall suffer three years’ imprisonment without bail. To give room, however, for repentance, if, within four months after the first conviction, the delinquent will in open court publicly renounce his error, he is discharged for that once from all disabilities.

II. A second offence is that of heresy, which consists not in a total denial of Christianity, but of some of its essential **45]doctrines publicly and obstinately avowed; being defined by Sir Matthew Hale, “sententia rerum divinarum humano sensu excogitata, palam docta et pertinaciter defensa.”(i) And here it must also be acknowledged that particular modes of belief or unbelief, not tending to overturn Christianity itself, or to sap the foundations of morality, are by no means the object of coercion by the civil magistrate. What doctrines shall therefore be adjudged heresy was left by our old constitution to the determination of the ecclesiastical judge; who had herein a most arbitrary latitude allowed him. For the general definition of a heretic given by Lyndewode,(k) extends to the smallest deviation from the doctrines of holy church; “hæreticus est qui dubitat de fide catholica, et qui negligit servare ea, quæ Romana ecclesia statuit, seu servare decreverat.” Or, as the statute 2 Hen. IV. c. 15 expresses it in English, “teachers of erroneous opinions, contrary to the faith and blessed determinations of the holy church.” Very contrary this to the usage of the first general councils, which defined all heretical doctrines with the utmost precision and exactness. And what ought to have alleviated the punishment, the uncertainty of the crime, seems to have enhanced it in those days of blind zeal and pious cruelty. It is true that the sanctimonious hypocrisy of the canonists went at first no further than enjoining penance, excommunication, and ecclesiastical deprivation for heresy; though afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios uses. But in the mean time they had prevailed upon the weakness of bigoted princes to make the civil power subservient to their purposes, by making heresy not only a temporal but even a capital offence: the Romish ecclesiastics determining, without appeal, whatever they pleased to be heresy, and shifting off to the secular arm the odium and drudgery of executions; with which they themselves were too tender and delicate to intermeddle. Nay, they pretended to intercede and pray on behalf of the convicted heretic, ut citra mortis periculum sententia circa eum moderatur;(l) well *[*46knowing at the same time that they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the antient Donatists and Manichæans by the emperors Theodosius and Justinian:(m) hence also the constitution of the emperor Frederic, mentioned by Lyndewode,(n) adjudging all persons, without distinction, to be burned with fire who were convicted of heresy by the ecclesiastical judge. The same emperor, in another constitution,(o) ordained that if any temporal lord, when admonished by the church, should neglect to clear his territories of heretics within a year, it should be lawful for good catholics to seize and occupy the lands and utterly to exterminate the heretical possessors. And upon this foundation was built that arbitrary power, so long claimed and so fatally exerted by the pope, of disposing even of the kingdoms of refractory princes to more dutiful sons of the church. The immediate event of this constitution was something singular, and may serve to illustrate at once the gratitude of the holy see and the just punishment of the royal bigot: for upon the authority of this very constitution the pope afterwards expelled this very emperor Frederic from his kingdom of Sicily and gave it to Charles of Anjou.(p)

Christianity being thus deformed by the demon of persecution upon the continent, we cannot expect that our own island should be entirely free from the same scourge. And therefore we find among our antient precedents(q) a writ de hæretico comburendo, which is thought by some to be as antient as the common law itself. However, it appears from thence that the conviction of heresy by the common law was not in any petty ecclesiastical court, but before the archbishop himself in a provincial synod; and that the delinquent was delivered over to the king to do as he should please with him; so that the crown had a control over the spiritual power, and might pardon the convict by issuing no process against him; the writ de hæretico comburendo being not a writ of course, but issuing only by the special direction of the king in council.(r)

*[*47But in the reign of Henry the Fourth, when the eyes of the Christian world began to open, and the seeds of the Protestant religion (though under the opprobrious name of lollardy)(s) took root in this kingdom; the clergy, taking advantage from the king’s dubious title to demand an increase of their own power, obtained an act of parliament(t) which sharpened the edge of persecution to its utmost keenness. For by that statute the diocesan alone, without the intervention of a synod, might convict of heretical tenets; and unless the convict abjured his opinions, or if after abjuration he relapsed, the sheriff was bound ex officio, if required by the bishop, to commit the unhappy victim to the flames, without waiting for the consent of the crown. By the statute 2 Hen. V. c. 7, lollardy was also made a temporal offence and indictable in the king’s courts; which did not thereby gain an exclusive, but only a concurrent, jurisdiction with the bishop’s consistory.

Afterwards, when the final reformation of religion began to advance, the power of the ecclesiastics was somewhat moderated; for though what heresy is was not then precisely defined, yet we were told in some points what it is not: the statute 25 Hen. VIII. c. 14 declaring that offences against the see of Rome are not heresy, and the ordinary being thereby restrained from proceeding in any case upon mere suspicion; that is, unless the party be accused by two credible witnesses, or an indictment of heresy be first previously found in the king’s courts of common law. And yet the spirit of persecution was not then abated, but only diverted into a lay channel. For in six years afterwards, by statute 31 Hen. VIII. c. 14, the bloody law of the six articles was made, which established the six most contested points of popery, transubstantiation, communion in one kind, the celibacy of the clergy, monastic vows, the sacrifice of the mass, and auricular confession; which points were “determined and resolved by the most **48]godly study, pain, and travail of his majesty: for which his most humble and obedient subjects, the lords spiritual and temporal, and the commons in parliament assembled, did not only render and give unto his highness their most high and hearty thanks,” but did also enact and declare all oppugners of the first to be heretics, and to be burned with fire; and of the five last to be felons, and to suffer death. The same statute established a new and mixed jurisdiction of clergy and laity for the trial and conviction of heretics; the reigning prince being then equally intent on destroying the supremacy of the bishops of Rome and establishing all other their corruptions of the Christian religion.

I shall not perplex this detail with the various repeals and revivals of these sanguinary laws in the two succeeding reigns; but shall proceed directly to the reign of queen Elizabeth; when the reformation was finally established with temper and decency, unsullied with party rancour or personal caprice and resentment. By statute 1 Eliz. c. 1, all former statutes relating to heresy are repealed, which leaves the jurisdiction of heresy as it stood at common law; viz., as to the infliction of common censures in the ecclesiastical courts; and, in case of burning the heretic, in the provincial senate only.(u) Sir Matthew Hale is indeed of a different opinion, and holds that such power resided in the diocesan also, though he agrees that in either case the writ de hæretico comburendo was not demandable of common right, but grantable or otherwise merely at the king’s discretion.(v) But the principal point now gained was that by this statute a boundary is for the first time set to what shall be accounted heresy; nothing for the future being to be so determined but only such tenets which have been heretofore so declared, 1. By the words of the canonical scriptures; 2. By the first four general councils, or such others as have only used the words of the holy scriptures; or, 3. Which shall hereafter be so declared by the parliament with the assent of the clergy in convocation. Thus was heresy reduced to a greater certainty than before; though it might not have been the worse to have defined it in terms still more precise and particular: as a man continued still **49]liable to be burned for what perhaps he did not understand to be heresy till the ecclesiastical judge so interpreted the words of the canonical scriptures.

For the writ de hæretico comburendo remained still in force; and we have instances of its being put in execution upon two anabaptists in the seventeenth of Elizabeth, and two Arians in the ninth of James the First. But it was totally abolished, and heresy again subjected only to ecclesiastical correction vro salute animæ, by virtue of the statute 29 Car. II. c. 9. For in one and the same reign our lands were delivered from the slavery of military tenures, our bodies from arbitrary imprisonment by the habeas corpus act, and our minds from the tyranny of superstitious bigotry by demolishing this last badge of persecution in the English law.

In what I have now said, I would not be understood to derogate from the just rights of the national church, or to favour a loose latitude of propagating any rude undigested sentiments in religious matters. Of propagating, I say; for the bare entertaining them, without an endeavour to diffuse them, seems hardly cognizable by any human authority. I only mean to illustrate the excellence of our present establishment, by looking back to former times. Every thing is now as it should be, with respect to the spiritual cognizance and spiritual punishment of heresy: unless, perhaps, that the crime ought to be more strictly defined, and no prosecution permitted, even in the ecclesiastical courts, till the tenets in question are by proper authority previously declared to be heretical. Under these restrictions, it seems necessary for the support of the national religion that the officers of the church should have power to censure heretics, yet not to harass them with temporal penalties, much less to exterminate or destroy them. The legislature hath indeed thought it proper that the civil magistrate should again interpose with regard to one species of heresy very prevalent in modern times; for, by statute 9 & 10 W. III. c. 32, if any person educated in the Christian religion, or professing the same, shall, by writing, printing, teaching, or advised speaking, deny any one of the persons of the Holy Trinity to be God, or maintain that there are *[*50more Gods than one, he shall undergo the same penalties and incapacities which were just now mentioned to be inflicted on apostasy by the same statute.1 And thus much for the crime of heresy.

III. Another species of offences against religion are those which affect the established church. And these are either positive or negative: positive, by reviling its ordinances; or negative, by non-conformity to its worship. Of both of these in their order.

1. And, first, of the offence of reviling the ordinances of the church. This is a crime of a much grosser nature than the other of mere non-conformity, since it carries with it the utmost indecency, arrogance, and ingratitude: indecency, by setting up private judgment in virulent and factious opposition to public authority; arrogance, by treating with contempt and rudeness what has at least a better chance to be right than the singular notions of any particular man; and ingratitude, by denying that indulgence and undisturbed liberty of conscience to the members of the national church which the retainers to every petty conventicle enjoy. However, it is provided, by statutes 1 Edw. VI. c. 1, and 1 Eliz. c. 1, that whoever reviles the sacrament of the Lord’s supper shall be punished by fine and imprisonment; and, by the statute 1 Eliz. c. 2, if any minister shall speak any thing in derogation from the book of common prayer, he shall, if not beneficed, be imprisoned one year for the first offence, and for life for the second; and if he be beneficed, he shall for the first offence be imprisoned six months, and forfeit a year’s value of his benefice; for the second offence he shall be deprived, and suffer one year’s imprisonment; and for the third shall in like manner be deprived, and suffer imprisonment for life. And if any person whatsoever shall, in plays, songs, or other open words, speak any thing in derogation, depraving, or despising of said book, or shall forcibly prevent the reading of it, or cause any other service to be used in its stead, he shall forfeit for the first offence a hundred marks; for the second, four hundred; and for the third shall forfeit all his goods and chattels, and suffer imprisonment for life.2 *[*51These penalties were framed in the infancy of our present establishment, when the disciples of Rome and of Geneva united in inveighing with the utmost bitterness against the English liturgy; and the terror of these laws (for they seldom, if ever, were fully executed) proved a principal means, under Providence, of preserving the purity as well as decency of our national worship. Nor can their continuance to this time (of the milder penalties at least) be thought too severe and intolerant; so far as they are levelled at the offence, not of thinking differently from the national church, but of railing at that church and obstructing its ordinances for not submitting its public judgment to the private opinion of others. For, though it is clear that no restraint should be laid upon rational and dispassionate discussions of the rectitude and propriety of the established mode of worship, yet contumely and contempt are what no establishment can tolerate.(w) A rigid attachment to trifles, and an intemperate zeal for reforming them, are equally ridiculous and absurd; but the latter is at present the less excusable, because from political reasons, sufficiently hinted at in a former volume,(x) it would now be extremely unadvisable to make any alterations in the service of the church; unless by its own consent, or unless it can be shown that some manifest impiety or shocking absurdity will follow from continuing the present forms.

2. Non-conformity to the worship of the church is the other or negative branch of this offence. And for this there is much more to be pleaded than for the former; being a matter of private conscience, to the scruples of which our present laws have shown a very just and Christian indulgence. For undoubtedly all persecution and oppression of weak consciences, on the score of religious persuasions, are highly unjustifiable upon every principle of natural reason, civil liberty, or sound religion. But care must be taken not to carry this indulgence into such extremes as may endanger **52]the national church: there is always a difference to be made between toleration and establishment.

Non-conformists are of two sorts: first, such as absent themselves from divine worship in the established church, through total irreligion, and attend the service of no other persuasion. These, by the statutes of 1 Eliz. c. 2, 23 Eliz. c. 1, and 3 Jac. I. c. 4, forfeit one shilling to the poor every Lord’s day they so absent themselves, and 20l. to the king if they continue such default for a month together. And if they keep any inmate, thus irreligiously disposed, in their houses, they forfeit 10l. per month.

The second species of non-conformists are those who offend through a mistaken or perverse zeal. Such were esteemed by our laws, enacted since the time of the reformation, to be papists and Protestant dissenters; both of which were supposed to be equally schismatics in not communicating with the national church; with this difference, that the papists divided from it upon material, though erroneous, reasons; but many of the dissenters upon matters of indifference, or, in other words, upon no reason at all. Yet certainly our ancestors were mistaken in their plans of compulsion and intolerance. The sin of schism, as such, is by no means the object of temporal coercion and punishment. If, through weakness of intellect, through misdirected piety, through perverseness and acerbity of temper, or (which is often the case) through a prospect of secular advantage in herding with a party, men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it, unless their tenets and practice are such as threaten ruin or disturbance to the state. He is bound indeed to protect the established church; and, if this can be better effected by admitting none but its genuine members to offices of trust and emolument, he is certainly at liberty so to do: the disposal of offices being matter of favour and discretion. But, this point being once secured, all persecution for diversity of opinions, however ridiculous or absurd they may be, is contrary to every principle of sound policy and civil freedom. The names and subordination of the clergy, the posture of devotion, the materials and **53]colour of the minister’s garment, the joining in a known or unknown form of prayer, and other matters of the same kind, must be left to the option of every man’s private judgment.

With regard, therefore, to Protestant dissenters, although the experience of their turbulent disposition in former times occasioned several disabilities and restrictions (which I shall not undertake to justify) to be laid upon them by abundance of statutes,(y) yet at length the legislature, with a spirit of true magnanimity, extended that indulgence to these sectaries which they themselves, when in power, had held to be countenancing schism and denied to the church of England.(z) The penalties are conditionally suspended by the statute 1 W. and M. st. 1, c. 18, “for exempting their majesties’ Protestant subjects, dissenting from the church of England, from the penalties of certain laws,” commonly called the toleration act; which is confirmed by the statute 10 Anne, c. 2, and declares that neither the laws above mentioned, nor the statutes 1 Eliz. c. 2, § 14, 3 Jac. I. c. 4 & 5, nor any other penal laws made against popish recusants, (except the test acts,) shall extend to any dissenters other than papists and such as deny the Trinity: provided, 1. that they take the oaths of allegiance and supremacy (or make a similar affirmation, being Quakers)(a) and subscribe the declaration against popery; 2. that they repair to some congregation certified to and registered in the court of the bishop or archdeacon, or at the county sessions; 3. that the doors of such meeting-house shall be unlocked, unbarred, and unbolted; in default of which the persons meeting there are still liable to all the penalties of the former acts. Dissenting teachers, in order to be exempted from the penalties of the statutes 13 & 14 Car. II. c. 4, 15 Car. II. c. 6, 17 Car. II. c. 2, and 22 Car. II. c. 1, are also to subscribe the articles of religion mentioned in the statute 13 Eliz. c. 12, (which only concern the confession of the true Christian faith and the doctrine of the sacraments,) with an express exception *[*54of those relating to the government and powers of the church and to infant baptism; or, if they scruple subscribing the same, shall make and subscribe the declaration prescribed by statute 19 Geo. III. c. 44, professing themselves to be Christians and Protestants, and that they believe the scriptures to contain the revealed will of God, and to be the rule of doctrine and practice. Thus, though the crime of non-conformity is by no means universally abrogated, it is suspended and ceases to exist with regard to those Protestant dissenters during their compliance with the conditions imposed by these acts; and, under these conditions, all persons, who will approve themselves no papists or oppugners of the Trinity, are left at full liberty to act as their consciences shall direct them in the matter of religious worship. And if any person shall wilfully, maliciously, or contemptuously disturb any congregation assembled in any church or permitted meeting-house, or shall misuse any preacher or teacher there, he shall (by virtue of the same statute, 1 W. & M.) be bound over to the sessions of the peace and forfeit twenty pounds.3 But, by statute 5 Geo. I. c. 4, no mayor or principal magistrate must appear at any dissenting meeting with the ensigns of his office,(b) on pain of disability to hold that or any other office: the legislature judging it a matter of propriety that a mode of worship set up in opposition to the national, when allowed to be exercised in peace, should be exercised also with decency, gratitude, and humility. Dissenters also, who subscribe the declaration of the act 19 Geo. III., are exempted (unless in the case of endowed schools and colleges) from the penalties of the statutes 13 & 14 Car. II. c. 4, and 17 Car. II. c. 2, which prohibit (upon pain of fine and imprisonment) all persons from teaching school, unless they be licensed by the ordinary, and subscribe a declaration of conformity to the liturgy of the church, and reverently frequent divine service, established by the laws of this kingdom.4

As to papists, what has been said of the Protestant dissenters would hold equally strong for a general toleration of them; **55]provided their separation was founded only upon difference of opinion in religion, and their principles did not also extend to a subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory and auricular confession, their worship of relics and images, nay, even their transubstantiation. But while they acknowledge a foreign power superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.

Let us therefore now take a view of the laws in force against the papists; who may be divided into three classes, persons professing popery, popish recusants convict, and popish priests. 1. Persons professing the popish religion, besides the former penalties for not frequenting their parish church, are disabled from taking their lands, either by descent or purchase, after eighteen years of age, until they renounce their errors; they must at the age of twenty-one register their estates before acquired, and all future conveyances and wills relating to them; they are incapable of presenting to any advowson, or granting to any other person any avoidance of the same; they may not keep or teach any school, under pain of perpetual imprisonment; and if they willingly say or hear mass, they forfeit the one two hundred, the other one hundred marks, and each shall suffer a year’s imprisonment. Thus much for persons who, from the misfortune of family prejudices or otherwise, have conceived an unhappy attachment to the Romish church from their infancy and publicly profess its errors. But if any evil industry is used to rivet these errors upon them, if any person sends another abroad to be educated in the popish religion or to reside in any religious house abroad for that purpose, or contributes to their maintenance when there; *[*56both the sender, the sent, and the contributor are disabled to sue in law or equity, to be executor or administrator to any person, to take any legacy or deed of gift, and to bear any office in the realm, and shall forfeit all their goods and chattels, and likewise all their real estate for life. And where these errors are also aggravated by apostasy or perversion, where a person is reconciled to the see of Rome, or procures others to be reconciled, the offence amounts to high treason. 2. Popish recusants, convicted in a court of law of not attending the service of the church of England, are subject to the following disabilities, penalties, and forfeitures, over and above those before mentioned. They are considered as persons excommunicated; they can hold no office or employment; they must not keep arms in their houses, but the same may be seized by the justices of the peace; they may not come within ten miles of London, on pain of 100l.; they can bring no action at law, or suit in equity: they are not permitted to travel above five miles from home, unless by license, upon pain of forfeiting all their goods; and they may not come to court under pain of 100l. No marriage or burial of such recusant, or baptism of his child, shall be had otherwise than by the ministers of the church of England, under other severe penalties. A married woman, when recusant, shall forfeit two-thirds of her dower or jointure; may not be executrix or administratrix to her husband, nor have any part of his goods; and during the coverture may be kept in prison, unless her husband redeems her at the rate of 10l. a month, or the third part of all his lands. And, lastly, as a feme-covert recusant may be imprisoned, so all others must, within three months after conviction, either submit and renounce their errors, or, if required so to do by four justices, must abjure and renounce the realm: and if they do not depart, or if they return without the king’s license, they shall be guilty of felony, and suffer death as felons without the benefit of clergy. There is also an inferior species of recusancy, (refusing to make the declaration against popery enjoined by statute 30 Car. II. st. 2, when tendered by the proper magistrate,) which, if the party resides within ten miles of London, makes him an absolute recusant convict; or, if at a greater distance, suspends him from having any seat in *[*57parliament, keeping arms in his house, or any horse above the value of five pounds. This is the state, by the laws now in being,(c) of a lay papist. But, 3. The remaining species or degree, viz., popish priests, are in a still more dangerous condition. For by statute 11 & 12 W. III. c. 4, popish priests or bishops celebrating mass or exercising any part of their functions in England, except in the houses of ambassadors, are liable to perpetual imprisonment. And, by the statute 27 Eliz. c. 2, any popish priest, born in the dominions of the crown of England, who shall come over hither from beyond sea, (unless driven by stress of weather, and tarrying only a reasonable time),(d) or shall be in England three days without conforming and taking the oaths, is guilty of high treason: and all persons harbouring him are guilty of felony without the benefit of clergy.

This is a short summary of the laws against the papists, under their three several classes of persons professing the popish religion, popish recusants convict, and popish priests. Of which the president Montesquieu observes,(e) that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt that can possibly be done in cold blood. But in answer to this it may be observed (what foreigners who only judge from our statute-book are not fully apprized of) that these laws are seldom exerted to their utmost rigour: and, indeed, if they were, it would be very difficult to excuse them. For they are rather to be accounted for from their history, and the urgency of the times which produced them, than to be approved (upon a cool review) as a standing system of law. The restless machinations of the Jesuits during the reign of Elizabeth, the turbulence and uneasiness of the papists under the new religious establishment, and the boldness of their hopes and wishes for the succession of the queen of Scots, obliged the parliament to counteract so dangerous a spirit by laws of a great, and then perhaps necessary, severity. The powder-treason in the succeeding reign struck a panic into **58]James I., which operated in different ways: it occasioned the enacting of new laws against the papists, but deterred him from putting them in execution. The intrigues of queen Henrietta in the reign of Charles I., the prospect of a popish successor in that of Charles II., the assassination-plot in the reign of king William, and the avowed claim of a popish pretender to the crown in that and subsequent reigns, will account for the extension of these penalties at those several periods of our history. But if a time shall ever arrive, and perhaps it is not very distant, when all fears of a pretender shall have vanished, and the power and influence of the pope shall become feeble, ridiculous, and despicable not only in England but in every kingdom of Europe, it probably would not then be amiss to review and soften these rigorous edicts; at least, till the civil principles of the Roman Catholics called again upon the legislature to renew them: for it ought not to be left in the breast of every merciless bigot to drag down the vengeance of these occasional laws upon inoffensive, though mistaken, subjects; in opposition to the lenient inclination of the civil magistrate, and to the destruction of every principle of toleration and religious liberty.

This hath partly been done by statute 18 Geo. III. c. 60, with regard to such papists as duly take the oath therein prescribed of allegiance to his majesty, abjuration of the pretender, renunciation of the pope’s civil power, and abhorrence of the doctrines of destroying and not keeping faith with heretics and deposing or murdering princes excommunicated by authority of the see of Rome: in respect of whom only the statute of 11 & 12 W. III. is repealed so far as it disables them from purchasing or inheriting, or authorizes the apprehending or prosecuting the popish clergy, or subjects to perpetual imprisonment either them or any teachers of youth.5

In order the better to secure the established church against perils from non-conformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are, however, two bulwarks erected; called the corporation and test acts: by the former of which(f) no person can be legally elected to any office relating to the government of any city or corporation, unless within a twelvemonth before he has received the sacrament of the Lord’s supper according to the rites of the church of England; and he is also enjoined to take the oaths of allegiance and supremacy at the *[*59same time that he takes the oath of office; or, in default of either of these requisites, such election shall be void.6 The other, called the test act,(g) directs all officers, civil and military, to take the oaths and make the declaration against transubstantiation in any of the king’s courts at Westminster, or at the quarter sessions, within six calendar months after their admission; and also within the same time7 to receive the sacrament of the Lord’s supper according to the usage of the church of England, in some public church, immediately after divine service and sermon, and to deliver into court a certificate thereof signed by the minister and church-warden, and also to prove the same by two credible witnesses; upon forfeiture of 500l. and disability to hold the said office.8 And of much the same nature with these is the statute 7 Jac. I. c. 2, which permits no person to be naturalized or restored in blood but such as undergo a like test: which test having been removed in 1753, in favour of the Jews, was the next session of parliament restored again with some precipitation.

Thus much for offences which strike at our national religion, or the doctrine and discipline of the church of England in particular. I proceed now to consider some gross impieties and general immoralities which are taken notice of and punished by our municipal law; frequently in concurrence with the ecclesiastical, to which the censure of many of them does also of right appertain; though with a view somewhat different: the spiritual court punishing all sinful enormities for the sake of reforming the private sinner, pro salute animæ; while the temporal courts resent the public affront to religion and morality on which all governments must depend for support, and correct more for the sake of example than private amendment.

IV. The fourth species of offences, therefore, more immediately against God and religion, is that of blasphemy against the Almighty by denying his being or providence; or by contumelious reproaches of our Saviour Christ.9 Whither also may be referred all profane scoffing at the holy scripture, or exposing it to contempt and ridicule. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment;(h) for Christianity is part of the laws of England.(i)

V. Somewhat allied to this, though in an inferior degree, is the offence of profane and common swearing and **60]cursing. By the last statute against which, 19 Geo. II. c. 21, which repeals all former ones, every labourer, sailor, or soldier profanely cursing or swearing shall forfeit 1s.; every other person, under the degree of a gentleman, 2s.; and every gentleman, or person of superior rank, 5s., to the poor of the parish; and, on the second conviction, double; and for every subsequent offence, treble the sum first forfeited; with all charges of conviction: and in default of payment shall be sent to the house of correction for ten days. Any justice of the peace may convict upon his own hearing, or the testimony of one witness; and any constable or peace officer, upon his own hearing, may secure any offender and carry him before a justice and there convict him.10 If the justice omits his duty he forfeits 5l., and the constable 40s. And the act is to be read in all parish churches and public chapels the Sunday after every quarter-day, on pain of 5l., to be levied by warrant from any justice.11 Besides this punishment for taking God’s name in vain in common discourse, it is enacted, by statute 3 Jac. I. c. 21, that if, in any stage-play, interlude, or show, the name of the Holy Trinity, or any of the persons therein, be jestingly or profanely used, the offender shall forfeit 10l., one moiety to the king, and the other to the informer.

VI. A sixth species of offence against God and religion, of which our antient books are full, is a crime of which one knows not well what account to give. I mean the offence of witchcraft, conjuration, enchantment, or sorcery. To deny the possibility, nay, actual existence, of witchcraft and sorcery is at once flatly to contradict the revealed word of God, in various passages both of the Old and New Testament: and the thing itself is a truth to which every nation in the world hath in its turn borne testimony, either by examples seemingly well attested or by prohibitory laws; which at least suppose the possibility of commerce with evil spirits. The civil law punishes with death not only the sorcerers themselves, but also those who consult them,(j) imitating in the former the express law of God,(k) “Thou shalt not suffer a witch to live.” And our own laws, both before and since the conquest, have been *[*61equally penal; ranking this crime in the same class with heresy, and condemning both to the flames.(l) The president Montesquieu(m) ranks them also both together, but with a very different view: laying it down as an important maxim that we ought to be very circumspect in the prosecution of magic and heresy; because the most unexceptionable conduct, the purest morals, and the constant practice of every duty in life are not a sufficient security against the suspicion of crimes like these. And indeed the ridiculous stories that are generally told, and the many impostures and delusions that have been discovered in all ages, are enough to demolish all faith in such a dubious crime; if the contrary evidence were not also extremely strong. Wherefore it seems to be the most eligible way to conclude, with an ingenious writer of our own,(n) that in general there has been such a thing as witchcraft; though one cannot give credit to any particular modern instance of it.

Our forefathers were stronger believers when they enacted, by statute 33 Hen. VIII. c. 8, all witchcraft and sorcery to be felony without benefit of clergy; and again, by statute 1 Jac. I. c. 12, that all persons invoking any evil spirit, or consulting, covenanting with, entertaining, employing, feeding, or rewarding, any evil spirit; or taking up dead bodies from their graves to be used in any witchcraft, sorcery, charm, or enchantment; or killing or otherwise hurting any person by such infernal arts, should be guilty of felony without benefit of clergy, and suffer death. And if any person should attempt by sorcery to discover hidden treasure, or to restore stolen goods, or to provoke unlawful love, or to hurt any man or beast, though the same were not effected, he or she should suffer imprisonment and pillory for the first offence, and death for the second. These acts continued in force till lately, to the terror of all antient females in the kingdom: and many poor wretches were sacrificed thereby to the prejudice of their neighbours and their own illusions; not a few having, by some means or other, confessed the fact at the gallows. But all executions for this dubious crime are now at an end; our legislature having at length followed the wise example of **62]Louis XIV. in France, who thought proper, by an edict, to restrain the tribunals of justice from receiving informations of witchcraft.(o) And accordingly it is with us enacted, by statute 9 Geo. II. c. 5, that no prosecution shall for the future be carried on against any persons for conjuration, witchcraft, sorcery, or enchantment. But the misdemeanour of persons pretending to use witchcraft, tell fortunes, or discover stolen goods, by skill in the occult sciences, is still deservedly punished with a year’s imprisonment, and standing four times in the pillory.12

VII. A seventh species of offenders in this class are all religious impostors: such as falsely pretend an extraordinary commission from heaven, or terrify and abuse the people with false denunciations of judgments. These, as tending to subvert all religion by bringing it into ridicule and contempt, are punishable by the temporal courts with fine, imprisonment, and infamous corporal punishment.(p)

VIII. Simony, or the corrupt presentation of any one to an ecclesiastical benefice for gift or reward, is also to be considered as an offence against religion; as well by reason of the sacredness of the charge which is thus profanely bought and sold, as because it is always attended with perjury in the person presented.(q)13 The statute 31 Eliz. c. 6 (which, so far as it relates to the forfeiture of the right of presentation, was considered in a former book)(r) enacts that if any patron, for money or any other corrupt consideration or promise, directly or indirectly given, shall present, admit, institute, induct, instal, or collate, any person to an ecclesiastical benefice or dignity, both the giver and taker shall forfeit two years’ value of the benefice or dignity; one moiety to the king, and the other to any one who will sue for the same. If persons also corruptly resign or exchange their benefices, both the giver and taker shall in like manner forfeit double the value of the money or other corrupt consideration.14 And persons who shall **63]corruptly ordain or license any minister, or procure him to be ordained or licensed, (which is the true idea of simony,) shall incur a like forfeiture of forty pounds; and the minister himself of ten pounds, besides an incapacity to hold any ecclesiastical preferment for seven years afterwards. Corrupt elections and resignations in colleges, hospitals, and other eleemosynary corporations, are also punished by the same statute with forfeiture of the double value, vacating the place or office, and a devolution of the right of election for that turn to the crown.15

IX. Profanation of the Lord’s day, vulgarly (but improperly) called sabbath-breaking, is a ninth offence against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the worship of their Maker. And, therefore, the laws of king Athelstan(s) forbade all merchandizing on the Lord’s day, under very severe penalties. And by the statute 27 Hen. VI. c. 5, no fair or market shall be held on the principal festivals, Good Friday, or any Sunday, (except the four Sundays in harvest,) on pain of forfeiting the goods exposed to sale. And since, by the statute 1 Car. I. c. 1, no persons shall assemble out of their own parishes for any sport whatsoever upon this day; nor, in their parishes, shall use any bull or *[*64bear baiting, interludes, plays, or other unlawful exercises or pastimes; on pain that every offender shall pay 3s. 4d. to the poor. This statute does not prohibit, but rather impliedly allows, any innocent recreation or amusement, within their respective parishes, even on the Lord’s day, after divine service is over. But, by statute 29 Car. II. c. 7, no person is allowed to work on the Lord’s day, or use any boat or barge, or expose any goods to sale; except meat in public houses, milk at certain hours, and works of necessity or charity, on forfeiture of 5s. Nor shall any drover, carrier, or the like travel upon that day, under pain of twenty shillings.16

X. Drunkenness is also punished, by statute 4 Jac. I. c. 5, with the forfeiture of 5s., or the sitting six hours in the stocks: by which time the statute presumes the offender will have regained his senses, and not be liable to do mischief to his neighbours. And there are many wholesome statutes by way of prevention, chiefly passed in the same reign of king James I., which regulate the licensing of alehouses, and punish persons found tippling therein; or the master of such houses permitting them.17

XI. The last offence which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness; either by frequenting houses of ill fame, which is an indictable offence;(t)18 or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment.(u)19 In the year 1650, when the ruling power found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilful adultery were made capital crimes, but also the repeated act of keeping a brothel, or committing fornication, were (upon a second conviction) made felony without benefit of clergy.(w) But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into the contrary extreme of licentiousness, it was not thought proper to renew a law of **65]such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual court according to the rules of the canon law; a law which has treated the offence of incontinence, nay, even adultery itself, with a great degree of tenderness and lenity, owing perhaps to the constrained celibacy of its first compilers. The temporal courts therefore take no cognizance of the crime of adultery otherwise than as a private injury.(x)

But, before we quit this subject, we must take notice of the temporal punishment for having bastard children, considered in a criminal light; for, with regard to the maintenance of such illegitimate offspring, which is a civil concern, we have formerly spoken at large.(y) By the statute 18 Eliz. c. 3, two justices may take order for the punishment of the mother and reputed father, but what that punishment shall be is not therein ascertained; though the contemporary exposition was that a corporal punishment was intended.(z) By statute 7 Jac. I. c. 4, a specific punishment (viz., commitment to the house of correction) is inflicted on the woman only. But in both cases it seems that the penalty can only be inflicted if the bastard becomes chargeable to the parish; for otherwise the very maintenance of the child is considered as a degree of punishment. By the last-mentioned statute, the justice may commit the mother to the house of correction, there to be punished and set on work for one year; and in case of a second offence, till she find sureties never to offend again.20

*[*66CHAPTER V.

OF OFFENCES AGAINST THE LAW OF NATIONS.

According to the method marked out in the preceding chapter, we are next to consider the offences more immediately repugnant to that universal law of society, which regulates the mutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as such, by the English law.

The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world;(a) in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each.(b) This general law is founded upon this principle,—that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prejudice to their own real interests.(c) And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest; but such rules must necessarily result from those *[*67principles of natural justice in which all the learned of every nation agree; or they depend upon mutual compacts or treaties between the respective communities, in the construction of which there is also no judge to resort to but the law of nature and reason, being the only one in which all the contracting parties are equally conversant and to which they are equally subject.

In arbitrary states this law, wherever it contradicts, or is not provided for by, the municipal law of the country, is enforced by the royal power; but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom, without which it must cease to be a part of the civilized world. Thus, in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature; the law-merchant,(d) which is a branch of the law of nations, is regularly and constantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to hostages and ransom-bills, there is no other rule of decision but this great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of.1

But though in civil transactions and questions of property between the subjects of different states the law of nations has much scope and extent as adopted by the law of England; yet the present branch of our inquiries will fall **68]within a narrow compass, as offences against the law of nations can rarely be the object of the criminal law of any particular state. For offences against this law are principally incident to whole states or nations: in which case recourse can only be had to war, which is an appeal to the God of hosts to punish such infractions of public faith as are committed by one independent people against another; neither state having any superior jurisdiction to resort to upon earth for justice. But where the individuals of any state violate this general law, it is then the interest as well as duty of the government under which they live to animadvert upon them with becoming severity, that the peace of the world may be maintained. For in vain would nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion, and involve the two states in a war. It is therefore incumbent upon the nation injured, first, to demand satisfaction and justice to be done on the offender by the state to which he belongs; and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject’s crime, and draws upon his community the calamities of foreign war.

The principal offences against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safe-conducts; 2. Infringement of the rights of embassadors; and, 3. Piracy.2

I. As to the first, violation of safe-conducts or passports, expressly granted by the king or his embassadors(e) to the subjects of a foreign power in time of mutual war, or committing acts of hostilities against such as are in amity, league, or truce with us, who are here under a general implied safe-conduct: these are breaches of the public faith, without the preservation of which there can be no intercourse or commerce between one nation and another: and such offences may, according to the writers upon the law of nations, be a just ground of a national war; since it is not in the power of *[*69the foreign prince to cause justice to be done to his subjects by the very individual delinquent, but he must require it of the whole community. And as, during the continuance of any safe-conduct, either express or implied, the foreigner is under the protection of the king and the law, and, more especially, as it is one of the articles of magna charta(f) that foreign merchants should be entitled to safe-conduct and security throughout the kingdom, there is no question but that any violation of either the person or property of such foreigner may be punished by indictment in the name of the king, whose honour is more particularly engaged in supporting his own safe-conduct. And, when this malicious rapacity was not confined to private individuals, but broke out into general hostilities, by the statute 2 Hen. V. st. 1, c. 6, breaking of truce and safe-conducts, or abetting and receiving the truce-breakers, was (in affirmance and support of the law of nations) declared to be high treason against the crown and dignity of the king, and conservators of truce and safe-conducts were appointed in every port, and empowered to hear and determine such treasons (when committed at sea) according to the antient marine law then practised in the admiral’s court, and, together with two men learned in the law of the land, to hear and determine according to that law the same treasons, when committed within the body of any county. Which statute, so far as it made these offences amount to treason, was suspended by 14 Hen. VI. c. 8, and repealed by 20 Hen. VI. c. 11, but revived by 29 Hen. VI. c. 2, which gave the same powers to the lord chancellor, associated with either of the chief justices, as belonged to the conservators of truce and their assessors; and enacted that, notwithstanding the party be convicted of treason, the injured stranger should have restitution out of his effects prior to any claim of the crown. And it is further enacted, by the statute 31 Hen. VI. c. 4, that if any of the king’s subjects attempt or offend upon the sea, or in any port within the king’s obeisance, against any stranger in amity, league, or truce, or under safe-conduct, and especially by attaching *[*70his person, or spoiling him or robbing him of his goods, the lord chancellor, with any of the justices of either the king’s bench or common pleas, may cause full restitution and amends to be made to the party injured.

It is to be observed that the suspending and repealing acts of 14 & 20 Hen. VI., and also the reviving act of 29 Hen. VI., were only temporary, so that it should seem that after the expiration of them all the statute 2 Hen. V. continued in full force; but yet it is considered as extinct by the statute 14 Edw. IV. c. 4, which revives and confirms all statutes and ordinances made before the accession of the house of York against breakers of amities, truces, leagues, and safe-conducts, with an express exception to the statute of 2 Hen. V. But (however that may be) I apprehend it was finally repealed by the general statutes of Edw. VI. and queen Mary, for abolishing new-created treasons; though Sir Matthew Hale seems to question it as to treasons committed on the sea.(g) But certainly the statute of 31 Hen. VI. remains in full force to this day.

II. As to the rights of embassadors, which are also established by the law of nations, and are therefore matter of universal concern, they have formerly been treated of at large.(h) It may here be sufficient to remark that the common law of England recognises them in their full extent by immediately stopping all legal process, sued out through the ignorance or rashness of individuals, which may intrench upon the immunities of a foreign minister or any of his train. And, the more effectually to enforce the law of nations in this respect, when violated through wantonness or insolence, it is declared, by the statute 7 Anne, c. 12, that all process whereby the person of any embassador, or of his domestic or domestic servant, may be arrested, or his goods distrained or seized, shall be utterly null and void;3 and that all persons prosecuting, soliciting, or executing such process, being convicted, by confession or the oath of one witness, before the **71]lord chancellor and the chief justices, or any two of them, shall be deemed violators of the laws of nations and disturbers of the public repose, and shall suffer such penalties and corporal punishment as the said judges, or any two of them, shall think fit.(i) Thus, in cases of extraordinary outrage, for which the law hath provided no special penalty, the legislature hath intrusted to the three principal judges of the kingdom an unlimited power of proportioning the punishment to the crime.

III. Lastly, the crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Coke,(k)hostis humani generis. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature by declaring war against all mankind, all mankind must declare war against him: so that every community hath a right, by the rule of self-defence, to inflict that punishment upon him which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property.4

By the antient common law, piracy, if committed by a subject, was held to be a species of high treason, being contrary to his natural allegiance, and by an alien to be felony only; but now, since the statute of treason, 25 Edw. III. c. 2, it is held to be only felony in a subject.(l) Formerly it was only cognizable by the admiralty courts, which proceed by the rules of the civil law.(m) But it being inconsistent with the liberties of the nation that any man’s life should be taken away, unless by the judgment of his peers or the common law of the land, the statute 28 Hen. VIII. c. 15 established a new jurisdiction for this purpose, which proceeds according to the course of the common law, and of which we shall say more hereafter.

**72]The offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there.(n) But, by statute, some other offences are made piracy also: as, by statute 11 & 12 W. III. c. 7, if any natural-born subject commits any act of hostility upon the high seas against others of his majesty’s subjects, under colour of a commission from any foreign power, this, though it would only be an act of war in an alien, shall be construed piracy in a subject. And, further, any commander or other seafaring person betraying his trust, and running away with any ship, boat, ordnance, ammunition, or goods, or yielding them up voluntarily to a pirate, or conspiring to do these acts, or any person assaulting the commander of a vessel to hinder him from fighting in defence of his ship, or confining him, or making or endeavouring to make a revolt on board, shall, for each of these offences, be adjudged a pirate, felon, and robber, and shall suffer death, whether he be principal or merely accessory by setting forth such pirates, or abetting them before the fact, or receiving or concealing them or their goods after it. And the statute, 4 Geo. I. c. 11 expressly excludes the principals from the benefit of clergy. By the statute 8 Geo. I. c. 24, the trading with known pirates, or furnishing them with stores or ammunition, or fitting out any vessel for that purpose, or in any wise consulting, combining, confederating, or corresponding with them, or the forcibly boarding any merchant vessel, though without seizing or carrying her off, and destroying or throwing any of the goods overboard, shall be deemed piracy; and such accessories to piracy as are described by the statute of king William are declared to be principal pirates, and all parties convicted by virtue of this act are made felons without benefit of clergy. By the same statutes, also, (to encourage the defence of merchant vessels against pirates,) the commanders or seamen wounded, and the widows of such seamen as are slain, in any piratical engagement, shall be entitled to a bounty, to *[*73be divided among them, not exceeding one-fiftieth part of the value of the cargo on board: and such wounded seamen shall be entitled to the pension of the Greenwich hospital, which no other seamen are, except only such as have served in a ship of war. And if the commander shall behave cowardly by not defending the ship, if she carries guns or arms, or shall discharge the mariners from fighting, so that the ship falls into the hands of pirates, such commander shall forfeit all his wages, and suffer six months’ imprisonment.5 Lastly, by statute 18 Geo. II. c. 30, any natural-born subject or denizen who in time of war shall commit hostilities at sea against any of his fellow-subjects, or shall assist an enemy on that element, is liable to be tried and convicted as a pirate.6

These are the principal cases in which the statute law of England interposes to aid and enforce the law of nations as a part of the common law, by inflicting an adequate punishment upon offences against that universal law committed by private persons. We shall proceed in the next chapter to consider offences which more immediately affect the sovereign executive power of our own particular state, or the king and government; which species of crime branches itself into a much larger extent than either of those of which we have already treated.

CHAPTER VI.

OF HIGH TREASON.

The third general division of crimes consists of such as more especially affect the supreme executive power, or the king and his government; which amount either to a total renunciation of that allegiance, or at the least to a criminal neglect of that duty which is due from every subject to his sovereign. In a former part of these commentaries(a) we had occasion to mention the nature of allegiance as the tie or ligamen which binds every subject to be true and faithful to his sovereign liege lord the king, in return for that protection which is afforded him, and truth and faith to bear of life, and limb, and earthly honour, and not to know or hear of any ill intended him without defending him therefrom. And this allegiance, we may remember, was distinguished into two species: the one natural and perpetual, which is inherent only in natives of the king’s dominions; the other local and temporary, which is incident to aliens also. Every offence, therefore, more immediately affecting the royal person, his crown or dignity, is in some degree a breach of this duty of allegiance, whether natural, or innate, or local, and acquired by residence; and these may be distinguished into four kinds: 1. Treason; 2. Felonies injurious to the king’s prerogative; 3. Præmunire; 4. Other misprisions and contempts: of which crimes the first and principal is that of treason.

**75]Treason, proditio, in its very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, saith the Mirror:(b) for treason is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual, relation, and the inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such superior or lord.(c) This is looked upon as proceeding from the same principle of treachery in private life as would have urged him who harbours it to have conspired in public against his liege lord and sovereign, and, therefore, for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary, these, being breaches of the lower allegiance of private and domestic faith, are denominated petit treasons. But when disloyalty so rears its crest as to attack even majesty itself, it is called, by way of eminent distinction, high treason, alta proditio; being equivalent to the crimen læsæ majestatis of the Romans, as Glanvil(d) denominates it also in our English law.

As this is the highest civil crime which (considered as a member of the community) any man can possibly commit, it ought therefore to be the most precisely ascertained. For, if the crime of high treason be indeterminate, this alone (says the president Montesquieu) is sufficient to make any government degenerate into arbitrary power.(e) And yet, by the antient common law, there was a great latitude left in the breast of the judges to determine what was treason, or not so: whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treasons; that is, to raise, by forced and arbitrary constructions, offences into the **76]crime and punishment of treason which never were suspected to be such. Thus, the accroaching, or attempting to exercise, royal power (a very uncertain charge) was, in the 21 Edw. III., held to be treason in a knight of Hertfordshire, who forcibly assaulted and detained one of the king’s subjects till he paid him 90l.:(f) a crime, it must be owned, well deserving of punishment; but which seems to be of a complexion very different from that of treason. Killing the king’s father, or brother, or even his messenger, has also fallen under the same denomination.(g) The latter of which is almost as tyrannical a doctrine as that of the imperial constitution of Arcadius and Honorius, which determines that any attempts or designs against the ministers of the prince shall be treason.(h) But, however, to prevent the inconveniences which began to arise in England from this multitude of constructive treasons, the statute 25 Edw. III. c. 2 was made; which defines what offences only for the future should be held to be treason: in like manner as the lex Julia majestatis among the Romans, promulged by Augustus Cæsar, comprehended all the antient laws that had before been enacted to punish transgressors against the state.(i)1 This statute must therefore be our text and guide, in order to examine into the several species of high treason. And we shall find that it comprehends all kinds of high treason under seven distinct branches.

1. “When a man doth compass or imagine the death of our lord the king, of our lady his queen, or of their eldest son and heir.” Under this description it is held that a queen regnant (such as queen Elizabeth and queen Anne) is within the words of the act, being invested with royal power and entitled to the allegiance of her subjects;(j) but the husband of such a queen is not comprised within these words, *[*77and therefore no treason can be committed against him.(k) The king here intended is the king in possession, without any respect to his title; for it is held that a king de facto and not de jure, or, in other words, a usurper that hath got possession of the throne, is a king within the meaning of the statute; as there is a temporary allegiance due to him, for his administration of the government and temporary protection of the public; and, therefore, treasons committed against Henry VI. were punished under Edward IV., though all the line of Lancaster had been previously declared usurpers by act of parliament. But the most rightful heir of the crown, or king de jure and not de facto, who hath never had plenary possession of the throne, as was the case of the house of York during the three reigns of the line of Lancaster, is not a king within this statute against whom treasons may be committed.(l) And a very sensible writer on the crown-law carries the point of possession so far that he holds(m) that a king out of possession is so far from having any right to our allegiance, by any other title which he may set up against the king in being, that we are bound by the duty of our allegiance to resist him. A doctrine which he grounds upon the statute 11 Hen. VII. c. 1, which is declaratory of the common law, and pronounces all subjects excused from any penalty or forfeiture which do assist and obey a king de facto. But, in truth, this seems to be confounding all notions of right and wrong; and the consequence would be that when Cromwell had murdered the elder Charles, and usurped the power (though not the name) of king, the people were bound in duty to hinder the son’s restoration: and were the king of Poland or Morocco to invade this kingdom, and by any means to get possession of the crown, (a term, by the way, of very loose and indistinct signification,) the subject would be bound by his allegiance to fight for his natural prince to-day, and by the same duty of allegiance to fight against him to-morrow. The true distinction seems to be that the statute of Henry **78]the Seventh does by no means command any opposition to a king de jure; but excuses the obedience paid to a king de facto. When, therefore, a usurper is in possession the subject is excused and justified in obeying and giving him assistance: otherwise, under a usurpation, no man could be safe, if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience. Nay, further, as the mass of people are imperfect judges of title, of which in all cases possession is prima facie evidence, the law compels no man to yield obedience to that prince whose right is by want of possession rendered uncertain and disputable, till Providence shall think fit to interpose in his favour and decide the ambiguous claim: and, therefore, till he is entitled to such allegiance by possession, no treason can be committed against him. Lastly, a king who has resigned his crown, such resignation being admitted and ratified in parliament, is, according to Sir Matthew Hale, no longer the object of treason.(n) And the same reason holds in case a king abdicates the government, or, by actions subversive of the constitution, virtually renounces the authority which he claims by that very constitution; since, as was formerly observed,(o) when the fact of abdication is once established and determined by the proper judges, the consequence necessarily follows that the throne is thereby vacant, and he is no longer king.

Let us next see what is a compassing or imagining the death of the king, &c. These are synonymous terms, the word compass signifying the purpose or design of the mind or will,(p) and not, as in common speech, the carrying such design to effect.(q) And therefore an accidental stroke, which may mortally wound the sovereign, per infortunium, without any traitorous intent, is no treason: as was the case of Sir Walter Tyrrel, who, by the command of king William Rufus, **79]shooting at a hart, the arrow glanced against a tree, and killed the king on the spot.(r) But, as this compassing or imagining is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open or overt act.2 And yet the tyrant Dionysius is recorded(s) to have executed a subject barely for dreaming that he had killed him, which was held of sufficient proof that he had thought thereof in his waking hours. But such is not the temper of the English law; and therefore in this and the three next species of treason it is necessary that there appear an open or overt act of a more full and explicit nature, to convict the traitor upon. The statute expressly requires that the accused “be thereof upon sufficient proof attainted of some open act by men of his own condition.” Thus, to provide weapons or ammunition for the purpose of killing the king, is held to be a palpable overt act of treason in imagining his death.(t) To conspire to imprison the king by force, and move towards it by assembling company, is an overt act of compassing the king’s death;(u) for all force used to the person of the king in its consequence may tend to his death, and is a strong presumption of something worse intended than the present force, by such as have so far thrown off their bounden duty to their sovereign; it being an old observation, that there is generally but a short interval between the prisons and the graves of princes. There is no question, also, but that taking any measures to render such treasonable purposes effectual, as assembling and consulting on the means to kill the king, is a sufficient overt act of high treason.(w)3

How far mere words, spoken by an individual, and not relative to any treasonable act or design then in agitation, shall amount to treason, has been formerly matter of doubt. We have two instances in the reign of Edward the Fourth *[*80of persons executed for treasonable words: the one a citizen of London, who said he would make his son heir of the crown, being the sign of the house in which he lived; the other a gentleman, whose favourite buck the king killed in hunting, whereupon he wished it, horns and all, in the king’s belly.4 These were esteemed hard cases; and the chief justice Markham rather chose to leave his place than assent to the latter judgment.(x) But now it seems clearly to be agreed that, by the common law and the statute of Edward III., words spoken amount to only a high misdemeanour, and no treason. For they may be spoken in heat, without any intention, or be mistaken, perverted, or mis-remembered by the hearers; their meaning depends always on their connection with other words and things; they may signify differently, even according to the tone of voice with which they are delivered; and sometimes silence itself is more expressive than any discourse. As, therefore, there can be nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high treason. And accordingly, in 4 Car. I., on a reference to all the judges concerning some very atrocious words spoken by one Pyne, they certified to the king “that though the words were as wicked as might be, yet they were no treason; for, unless it be by some particular statute, no words will be treason.”(y)5 If the words be set down in writing, it argues more deliberate intention: and it has been held that writing is an overt act of treason; for scribere est agere. But even in this case the bare words are not the treason, but the deliberate act of writing them. And such writing, though unpublished, has, in some arbitrary reigns, convicted its author of treason; particularly in the cases of one Peachum, a clergyman, for treasonable passages in a sermon never preached,(z) and of Algernon Sydney, for some papers found in his closet, which, had they been plainly relative to any previous formed design of dethroning or murdering the king, might doubtless have been properly read in evidence as overt **81]acts of that treason which was specially laid in the indictment.(a) But being merely speculative, without any intention (so far as appeared) of making any public use of them, the convicting the authors of treason upon such an insufficient foundation has been universally disapproved. Peachum was therefore pardoned; and though Sydney, indeed, was executed, yet it was to the general discontent of the nation, and his attainder was afterwards reversed by parliament. There was then no manner of doubt but that the publication of such a treasonable writing was a sufficient overt act of treason at the common law;(b) though of late even that has been questioned.

2. The second species of treason is, “if a man do violate the king’s companion, or the king’s eldest daughter unmarried, or the wife of the king’s eldest son and heir.” By the king’s companion is meant his wife; and by violation is understood carnal knowledge, as well without force as with it: and this is high treason in both parties, if both be consenting, as some of the wives of Henry the Eighth by fatal experience evinced. The plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and, therefore, when this reason ceases the law ceases with it; for to violate a queen or princess dowager is held to be no treason,(c)6 in like manner as, by the feodal law, it was a felony, and attended with a forfeiture of the fief, if the vassal vitiated the wife or daughter of his lord,(d) but not so if he only vitiated his widow.(e)

3. The third species of treason is, “if a man do levy war against our lord the king, in his realm.” And this may be done by taking arms, not only to dethrone the king, but under pretence to reform religion or the laws, or to remove evil counsellors, or other grievances, whether real or pretended.(f)7 For the law does not, neither can it, permit **82]any private man, or set of men, to interfere forcibly in matters of such high importance, especially as it has established a sufficient power for these purposes in the high court of parliament; neither does the constitution justify any private or particular resistance for private or particular grievances, though in cases of national oppression the nation has very justifiably risen as one man to vindicate the original contract subsisting between the king and his people. To resist the king’s forces by defending a castle against them, is a levying of war; and so is an insurrection with an avowed design to pull down all enclosures, all brothels, and the like: the universality of the design making it a rebellion against the state, an usurpation of the powers of government, and an insolent invasion of the king’s authority.(g) But a tumult, with a view to pull down a particular house, or lay open a particular enclosure, amounts at most to a riot, this being no general defiance of public government. So, if two subjects quarrel, and levy war against each other, (in that spirit of private war which prevailed all over Europe(h) in the early feodal times,) it is only a great riot and contempt, and no treason. Thus it happened between the earls of Hereford and Gloster, in 20 Edw. I., who raised each a little army, and committed outrages upon each other’s lands, burning houses, attended with the loss of many lives: yet this was held to be no high treason, but only a great misdemeanour.(i) A bare conspiracy to levy war does not amount to this species of treason; but (if particularly pointed at the person of the king, or his government) it falls within the first, of compassing or imagining the king’s death.(k)

4. “If a man be adherent to the king’s enemies in his realm, giving to them aid and comfort in the realm or elsewhere,” he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence,8 by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the *[*83like.(l) By enemies are here understood the subjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coasts without any open hostilities between their nation and our own, and without any commission from any prince or state at enmity with the crown of Great Britain, the giving them any assistance is also clearly treason, either in the light of adhering to the public enemies of the king and kingdom,(m) or else in that of levying war against his majesty. And, most indisputably, the same acts of adherence or aid which (when applied to foreign enemies) will constitute treason under this branch of the statute will (when afforded to our own fellow-subjects in actual rebellion at home) amount to high treason under the description of levying war against the king.(n) But to relieve a rebel fled out of the kingdom is no treason; for the statute is taken strictly, and a rebel is not an enemy; an enemy being always the subject of some foreign prince, and one who owes no allegiance to the crown of England.(o) And if a person be under circumstances of actual force and constraint, through a well-grounded apprehension of injury to his life or person, this fear or compulsion will excuse his even joining with either rebels or enemies in the kingdom, provided he leaves them whenever he hath a safe opportunity.(p)9

5. “If a man counterfeits the king’s great or privy seal,” this is also high treason. But if a man take wax bearing the impression of the great seal off from one patent, and fixes it to another, this is held to be only an abuse of the seal, and not a counterfeiting of it; as was the case of a certain chaplain who in such manner framed a dispensation for non-residence. But the knavish artifice of a lawyer much exceeded this of the divine. One of the clerks in chancery glued together two pieces of parchment, on the uppermost of which he wrote a patent, to which he regularly obtained the great seal, the label going through both the skins. He *[*84then dissolved the cement, and taking off the written patent, on the blank skin wrote a fresh patent of a different import from the former, and published it as true. This was held no counterfeiting of the great seal, but only a great misprision; and Sir Edward Coke(q) mentions it with some indignation that the party was living at that day.

6. The sixth species of treason under this statute is, “if a man counterfeit the king’s money, and if a man bring false money into the realm counterfeit to the money of England, knowing the money to be false, to merchandise and make payment withal.” As to the first branch, counterfeiting the king’s money; this is treason, whether the false money be uttered in payment or not. Also, if the king’s own minters alter the standard or alloy established by law, it is treason. But gold and silver money only are held to be within the statute.(r)10 With regard likewise to the second branch, importing foreign counterfeit money in order to utter it here; it is held that uttering it, without importing it, is not within the statute.(s) But of this we shall presently say more.

7. The last species of treason ascertained by the statute is, “if a man slay the chancellor, treasurer, or the king’s justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places doing their offices.” These high magistrates, as they represent the king’s majesty during the execution of their offices, are therefore for the time equally regarded by the law. But this statute extends only to the actual killing of them, and not wounding or a bare attempt to kill them. It extends also only to the officers therein specified; and therefore the barons of exchequer, as such, are not within the protection of this act:(t) but the lord keeper or commissioners of the great seal now seem to be within it, by virtue of the statutes 5 Eliz. c. 18, and 1 W. and M. c. 21.11

**85]Thus careful was the legislature, in the reign of Edward the Third, to specify and reduce to a certainty the vague notions of treason that had formerly prevailed in our courts. But the act does not stop here, but goes on. “Because other like cases of treason may happen in time to come, which cannot be thought of nor declared at present, it is accorded, that if any other cause supposed to be treason, which is not above specified, doth happen before any judge, the judge shall tarry without going to judgment of the treason till the cause be showed and declared before the king and his parliament whether it ought to be judged treason or other felony.” Sir Matthew Hale(u) is very high in his encomiums on the great wisdom and care of the parliament in thus keeping judges within the proper bounds and limits of this act, by not suffering them to run out (upon their own opinions) into constructive treasons, though in cases that seem to them to have a like parity of reason, but reserving them to the decision of parliament. This is a great security to the public, the judges, and even this sacred act itself; and leaves a weighty memento to judges to be careful and not over-hasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved and settled. 2. He observes, that as the authoritative decision of these casus omissi is reserved to the king and parliament, the most regular way to do it is by a new declarative act; and therefore, the opinion of any one or of both houses, though of very respectable weight, is not that solemn declaration referred to by this act as the only criterion for judging of future treasons.

In consequence of this power, not indeed originally granted by the statute of Edward III., but constitutionally inherent in every subsequent parliament, (which cannot be abridged of any rights by the act of a precedent one,) the legislature was extremely liberal in declaring new treasons in the unfortunate reign of king Richard the Second; as, particularly the killing of an embassador was made so; **86]which seems to be founded on better reason than the multitude of other points that were then strained up to this high offence; the most arbitrary and absurd of all which was by the statute 21 Ric. II. c. 3, which made the bare purpose and intent of killing or deposing the king, without any overt act to demonstrate it, high treason. And yet so little effect have over-violent laws to prevent any crime that within two years afterwards this very prince was both deposed and murdered. And in the first year of his successor’s reign an act was passed,(v) reciting “that no man knew how he ought to behave himself, to do, speak, or say, for doubt of such pains of treason; and therefore it was accorded that in no time to come any treason be judged otherwise than was ordained by the statute of king Edward the Third.” This at once swept away the whole load of extravagant treasons introduced in the time of Richard the Second.

But afterwards, between the reigns of Henry the Fourth and queen Mary, and particularly in the bloody reign of Henry the Eighth, the spirit of inventing new and strange treasons was revived: among which we may reckon the offences of clipping money; breaking prison or rescue when the prisoner is committed for treason; burning houses to extort money; stealing cattle by Welshmen; counterfeiting foreign coin; wilful poisoning; execrations against the king, calling him opprobrious names by public writing; counterfeiting the sign-manual or signet; refusing to abjure the pope; deflowering or marrying, without the royal license, any of the king’s children, sisters, aunts, nephews, or nieces; bare solicitation of the chastity of the queen or princess, or advances made by themselves; marrying with the king, by a woman not a virgin, with out previously discovering to him such her unchaste life; judging or believing (manifested by any overt act) the king to have been lawfully married to Anne of Cleves; derogating from the king’s royal style and title; impugning his supremacy; and assembling riotously to the *[*87number of twelve and not dispersing upon proclamation: all which new-fangled treasons were totally abrogated by the statute 1 Mar. c. I, which once more reduced all treasons to the standard of the statute 25 Edw. III. Since which time, though the legislature has been more cautious in creating new offences of this kind, yet the number is very considerably increased, as we shall find upon a short review.12

These new treasons, created since the statute 1 Mar. c. 1, and not comprehended under the description of statute 25 Edw. III., I shall comprise under three heads. 1. Such as relate to papists. 2. Such as relate to falsifying the coin or other royal signatures. 3. Such as are created for the security of the Protestant succession in the house of Hanover.

1. The first species, relating to papists, was considered in a preceding chapter, among the penalties incurred by that branch of non-conformists to the national church; wherein we have only to remember that, by statute 5 Eliz. c. 1, to defend the pope’s jurisdiction in this realm is, for the first time, a heavy misdemeanour; and if the offence be repeated it is high treason. Also, by statute 27 Eliz. c. 2, if any popish priest, born in the dominions of the crown of England, shall come over hither from beyond the seas, unless driven by stress of weather(w) and departing in a reasonable time;(x) or shall tarry here three days without conforming to the church and taking the oaths; he is guilty of high treason. And, by statute 3 Jac. I. c. 4, if any natural-born subject be withdrawn from his allegiance and reconciled to the pope or see of Rome, or any other prince or state, both he and all such as procure such reconciliation shall incur the guilt of high treason. These were mentioned under the division before referred to as spiritual offences, and I now repeat them as temporal ones also; the reason of distinguishing these overt acts of popery from all others, by setting the mark of high treason upon them, being certainly on a civil and not on a religious account. For every popish priest of course renounces his allegiance to his *[*88temporal sovereign upon taking orders; that being inconsistent with his new engagements of canonical obedience to the pope; and the same may be said of an obstinate defence of his authority here, or a formal reconciliation to the see of Rome, which the statute construes to be a withdrawing from one’s natural allegiance; and therefore, besides being reconciled “to the pope,” it also adds, “or any other prince or state.”13

2. With regard to treasons relative to the coin or other royal signatures, we may recollect that the only two offences respecting the coinage, which are made treason by the statute 25 Edw. III., are the actual counterfeiting the gold and silver coin of this kingdom, or the importing such counterfeit money with intent to utter it, knowing it to be false. But, these not being found sufficient to restrain the evil practices of coiners and false moneyers, other statutes have been since made for that purpose. The crime itself is made a species of high treason; as being a breach of allegiance, by infringing the king’s prerogative and assuming one of the attributes of the sovereign, to whom alone it belongs to set the value and denomination of coin made at home, or to fix the currency of foreign money: and besides, as all money which bears the stamp of the kingdom is sent into the world upon the public faith, as containing metal of a particular weight and standard, whoever falsifies this is an offender against the state by contributing to render that public faith suspected. And upon the same reasons, by a law of the emperor Constantine,(y) false coiners were declared guilty of high treason, and were condemned to be burned alive: as, by the laws of Athens,(z) all counterfeiters, debasers, and diminishers of the current coin were subjected to capital punishment. However, it must be owned that this method of reasoning is a little overstrained: counterfeiting or debasing the coin being usually practised rather for the sake of private and unlawful lucre than out of any disaffection for the sovereign. And **89]therefore both this and its kindred species of treason, that of counterfeiting the seals of the crown or other royal signatures, seem better denominated by the later civilians a branch of the crimen falsi or forgery, (in which they are followed by Glanvil,(a) Bracton,(b) and Fleta,(c) ) than by Constantine and our Edward the Third, a species of the crimen læsæ majestatis, or high treason. For this confounds the distinction and proportion of offences; and, by affixing the same ideas of guilt upon the man who coins a leaden groat and him who assassinates his sovereign, takes off from that horror which ought to attend the very mention of the crime of high treason, and makes it more familiar to the subject. Before the statute 25 Edw. III. the offence of counterfeiting the coin was held to be only a species of petit treason;(d) but subsequent acts, in their new extensions of the offence, have followed the example of that statute, and have made it equally high treason, with an endeavour to subvert the government, though not quite equal in its punishment.

In consequence of the principle thus adopted, the statute 1 Mar. c. 1 having at one stroke14 repealed all intermediate treasons created since the 25 Edw. III., it was thought expedient, by statute 1 Mar. st. 2, c. 6, to revive two species thereof, viz.: 1. That if any person falsely forge or counterfeit any such kind of coin, of gold or silver, as is not the proper coin of this realm, but shall be current within this realm by consent of the crown; or, 2, shall falsely forge or counterfeit the sign-manual, privy signet, or privy seal; such offences shall be deemed high treason. And, by statute 1 & 2 P. and M. c. 11, if any persons do bring into this realm such false or counterfeit foreign money, being current here, knowing the same to be false, with intent to utter the same in payment, they shall be deemed offenders in high treason. The money referred to in these statutes must be such as is absolutely current here, in all payments, by the king’s proclamation; of which there is none at present, Portugal money being only taken by *[*90consent, as approaching the nearest to our standard, and falling in well enough with our divisions of money into pounds and shillings: therefore to counterfeit it is not high treason, but another inferior offence. Clipping or defacing the genuine coin was not hitherto included in these statutes; though an offence equally pernicious to trade, and an equal insult upon the prerogative, as well as personal affront to the sovereign, whose very image ought to be had in reverence by all loyal subjects. And therefore, among the Romans,(e) defacing or even melting down the emperor’s statues was made treason by the Julian law; together with other offences of the like sort, according to that vague conclusion, “aliudve quid simile si admiserint.” And now, in England, by statute 5 Eliz. c. 11, clipping, washing, rounding, or filing, for wicked gain’s sake, any of the money of this realm, or other money suffered to be current here, shall be adjudged high treason; and, by statute 18 Eliz. c. 1, (because “the same law, being penal, ought to be taken and expounded strictly according to the words thereof, and the like offences, not by any equity to receive the like punishment or pains,”) the same species of offences is therefore described in other more general words, viz.: impairing, diminishing, falsifying, scaling, and lightening; and made liable to the same penalties. By statute 8 & 9 W. III. c. 26, made perpetual by 7 Anne, c. 25, whoever, without proper authority, shall knowingly make or mend, or assist in so doing, or shall buy, sell, conceal, hide, or knowingly have in his possession, any implements of coinage specified in the act, or other tools or instruments proper only for the coinage of money,15 or shall convey the same out of the king’s mint; he, together with his counsellors, procurers, aiders, and abettors, shall be guilty of high treason, which is by much the severest branch of the coinage-law. The statute goes on further, and enacts that to mark any coin on the edges with letters, or otherwise, in imitation of those used in the mint; or to colour, gild, or case over any coin resembling the current coin, or even round blanks of base metal; shall be construed high treason. But all prosecutions on this act are to be commenced within three *[*91months after the commission of the offence;16 except those for making or amending any coining tool or instrument, or for marking money round the edges; which are directed to be commenced within six months after the offence committed.(f)17 And, lastly, by statute 15 & 16 Geo. II. c. 28, if any person colours or alters any shilling or sixpence, either lawful or counterfeit, to make them respectively resemble a guinea or half-guinea, or any half-penny or farthing, to make them respectively resemble a shilling or sixpence; this is also high treason; but the offender shall be pardoned in case (being out of prison) he discovers and convicts two other offenders of the same kind.18

3. The other species of high treason is such as is created for the security of the Protestant succession over and above such treasons against the king and government as were comprised under the statute 25 Edw. III. For this purpose, after the act of settlement was made for transferring the crown to the illustrious house of Hanover, it was enacted, by statute 13 & 14 W. III. c. 3, that the pretended prince of Wales, who was then thirteen years of age and had assumed the title of king James III., should be attainted of high treason; and it was made high treason for any of the king’s subjects, by letters, messages, or otherwise, to hold correspondence with him or any person employed by him, or to remit any money for his use, knowing the same to be for his service. And by statute 17 Geo. II. c. 39, it is enacted that, if any of the sons of the pretender shall land or attempt to land in this kingdom, or be found in Great Britain, or Ireland, or any of the dominions belonging to the same, he shall be judged attainted of high treason, and suffer the pains thereof. And to correspond with them, or to remit money for their use, is made high treason in the same manner as it was to correspond with the father. By the statute 1 Anne, st. 2, c. 17, if any person shall endeavour to deprive or hinder any person being the next in succession to the crown, according to the limitations of the act of settlement, from succeeding to the crown, and shall maliciously and directly attempt the same by any **92]overt act, such offence shall be high treason. And by statute 6 Anne, c. 7, if any person shall maliciously, advisedly, and directly, by writing or printing, maintain and affirm that any other person hath any right or title to the crown of this realm otherwise than according to the act of settlement, or that the kings of this realm with the authority of parliament are not able to make laws and statutes to bind the crown and the descent thereof, such person shall be guilty of high treason. This offence (or indeed maintaining this doctrine in any wise, that the king and parliament cannot limit the crown) was once before made high treason, by statute 13 Eliz. c. 1, during the life of that princess. And after her decease it continued a high misdemeanour, punishable with forfeiture of goods and chattels, even in the most flourishing era of indefeasible hereditary right and jure divino succession. But it was again raised into high treason, by the statute of Anne before mentioned, at the time of a projected invasion in favour of the then pretender; and upon this statute one Matthews, a printer, was convicted and executed in 1719, for printing a treasonable pamphlet entitled “vox populi vox Dei.”(g)

Thus much for the crime of treason, or læsæ majestatis, in all its branches; which consists, we may observe, originally, in grossly counteracting that allegiance which is due from the subject by either birth or residence; though, in some instances, the zeal of our legislators to stop the progress of some highly pernicious practices has occasioned them a little to depart from this its primitive idea. But of this enough has been hinted already: it is now time to pass on from defining the crime to describing its punishment.

The punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually (by connivance,(h) at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement.(i) 2. That he **93]be hanged by the neck, and then cut down alive. 3. That his entrails be taken out and burned while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king’s disposal.(k)

The king may, and often doth, discharge all the punishment, except beheading, especially where any of noble blood are attainted. For beheading being part of the judgment, that may be executed, though all the rest be omitted by the king’s command.(l) But where beheading is no part of the judgment, as in murder or other felonies, it hath been said that the king cannot change the judgment, although at the request of the party, from one species of death to another.(m) But of this we shall say more hereafter.(n)

In the case of coining, which is a treason of a different complexion from the rest, the punishment is milder for male offenders, being only to be drawn and hanged by the neck till dead.(o) But in treasons of every kind the punishment of women is the same, and different from that of men. For, as the decency due to the sex forbids the exposing and publicly mangling their bodies, their sentence (which is to the full as terrible to sensation as the other) is, to be drawn to the gallows, and there to be burned alive.(p)19

The consequence of this judgment (attainder, forfeiture, and corruption of blood) must be referred to the latter end of this book, when we shall treat of them all together, as well in treason as in other offences.

CHAPTER VII.

OF FELONIES INJURIOUS TO THE KING’S PREROGATIVE.

*[*94As, according to the method I have adopted, we are next to consider such felonies as are more immediately injurious to the king’s prerogative, it will not be amiss here, at our first entrance upon this crime, to inquire briefly into the nature and meaning of felony, before we proceed upon any of the particular branches into which it is divided.

Felony, in the general acceptation of our English law, comprises every species of crime which occasioned at common law the forfeiture of lands and goods. This most frequently happens in those crimes for which a capital punishment either is or was liable to be inflicted; for those felonies which are called clergyable, or to which the benefit of clergy extends, were antiently punished with death in all lay or unlearned offenders, though now, by the statute-law, that punishment is for the first offence universally remitted. Treason itself, says Sir Edward Coke,(a) was antiently comprised under the name felony; and in confirmation of this, we may observe that the statute of treasons, 25 Edw. III. c. 2, speaking of some dubious crimes, directs a reference to parliament, **95]that it may there be adjudged “whether they be treason, or other felony.” All treasons, therefore, strictly speaking, are felonies, though all felonies are not treason. And to this also we may add, that not only all offences now capital are in some degree or other felony, but that this is likewise the case with some other offences, which are not punished with death, as suicide, where the party is already dead; homicide by chance-medley, or in self-defence; and petit larceny, or pilfering; all which are (strictly speaking) felonies, as they subject the committers of them to forfeitures. So that, upon the whole, the only adequate definition of felony seems to be that which is before laid down, viz., an offence which occasions a total forfeiture of either lands or goods, or both, at the common law, and to which capital or other punishment may be superadded, according to the degree of guilt.

To explain this matter a little further: the word felony, or felonia, is of undoubted feodal original, being frequently to be met with in the books of feuds, &c.; but the derivation of it has much puzzled the juridical lexicographers, Prateus, Calvinus, and the rest; some deriving it from the Greek φηλος, an impostor or deceiver; others from the Latin fallo, fefelli, to countenance which they would have it called fallonia. Sir Edward Coke, as his manner is, has given us a still stranger etymology;(b) that it is crimen animo felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the description that it is such a crime as occasions a forfeiture of all the offender’s lands or goods. And this gives great probability to Sir Henry Spelman’s Teutonic or German derivation of it;(c) in which language, indeed, as the word is clearly of feodal original, we ought rather to look for its signification, than among the Greeks and Romans. Fe-lon, then, according to him, is derived from two northern words: fee, which signifies (we well know) the fief, feud, or beneficiary estate, and lon, which signifies price or value. Felony is therefore the same as pretium feudi, the **96]consideration for which a man gives up his fief. As we say in common speech, such an act is as much as your life or estate is worth. In this sense it will clearly signify the feodal forfeiture, or act by which an estate is forfeited or escheats to the lord.1

To confirm this, we may observe that it is in this sense of forfeiture to the lord that the feodal writers constantly use it. For all those acts, whether of a criminal nature or not, which at this day are generally forfeitures of copyhold estates,(d) are styled felonia in the feodal law: “scilicet, per quas feudum amittitur.”(e) As, “si domino deservire noluerit;(f)si per annum et diem cessaverit in petenda investitura;(g)si dominum ejuravit, i.e. negavit se a domino feudum habere;(h)si a domino, in jus eum vocante, ter citatus non comparuerit;”(i) all these, with many others, are still causes of forfeiture in our copyhold estates, and were denominated felonies by the feodal constitutions. So likewise injuries of a more substantial or criminal nature were denominated felonies, that is, forfeitures; as, assaulting or beating the lord;(k) vitiating his wife or daughter, “si dominum cucurbitaverit, i.e. cum uxore ejus concubuerit;”(l) all these are esteemed felonies, and the latter is expressly so denominated, “si fecerit feloniam, dominum forte cucurbitando.”(m) And as these contempts, or smaller offences, were felonies or acts of forfeiture, of course greater crimes, as murder and robbery, fell under the same denomination. On the other hand, the lord might be guilty of felony, or forfeit his seignory to the vassal, by the same acts as the vassal would have forfeited his feud to the lord. “Si dominus commisit feloniam, per quam vasallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominusperdere debet.”(n) One instance given of this sort of felony in the lord is beating the servant of his vassal so as that he loses his services; which seems merely in the nature of a civil *[*97injury, so far as it respects the vassal. And all these felonies were to be determined “per laudamentum sive judicium parium suorum,” in the lord’s court; as with us forfeitures of copyhold lands are presentable by the homage in the court-baron.

Felony, and the act of forfeiture to the lord, being thus synonymous terms in the feodal law, we may easily trace the reason why, upon the introduction of that law into England, those crimes which induced such forfeiture or escheat of lands (and, by small deflection from the original sense, such as induced the forfeiture of goods also) were denominated felonies. Thus, it was said that suicide, robbery, and rape were felonies; that is, the consequence of such crimes was forfeiture; till by long use we began to signify by the term felony the actual crime committed, and not the penal consequence. And upon this system only can we account for the cause why treason in antient times was held to be a species of felony: viz., because it induced a forfeiture.

Hence it follows that capital punishment does by no means enter into the true idea and definition of felony. Felony may be without inflicting capital punishment, as in the cases instanced of self-murder, excusable homicide, and petit larceny; and it is possible that capital punishments may be inflicted and yet the offence be no felony; as in case of heresy by the common law, which, though capital, never worked any forfeiture of lands or goods,(o) an inseparable incident to felony. And of the same nature was the punishment of standing mute without pleading to an indictment, which at the common law was capital, but without any forfeiture, and therefore such standing mute was no felony. In short, the true criterion of felony is forfeiture; for, as Sir Edward Coke justly observes,(p) in all felonies which are punishable with death the offender loses all his lands in fee-simple and also his goods and chattels; in such as are not so punishable, his goods and chattels only.

*[*98The idea of felony is, indeed, so generally connected with that of capital punishment that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore, if a statute makes any new offence felony, the law(q) implies that it shall be punished with death, viz., by hanging, as well as with forfeiture; unless the offender prays the benefit of clergy; which all felons are entitled once to have, provided the same is not expressly taken away by statute.2 And, in compliance herewith, I shall for the future consider it also in the same light as a generical term, including all capital crimes below treason; having premised thus much concerning the true nature and original meaning of felony, in order to account for the reason of those instances I have mentioned, of felonies that are not capital, and capital offences that are not felonies; which seem at first view repugnant to the general idea which we now entertain of felony as a crime to be punished by death; whereas, properly, it is a crime to be punished by forfeiture, and to which death may or may not be, though it generally is, superadded.

I proceed now to consider such felonies as are more immediately injurious to the king’s prerogative. These are, 1. Offences relating to the coin, not amounting to treason. 2. Offences against the king’s council. 3. The offence of serving a foreign prince. 4. The offence of embezzling or destroying the king’s armour or stores of war. To which may be added a fifth: 5. Desertion from the king’s armies in time of war.

1. Offences relating to the coin, under which may be ranked some inferior misdemeanours not amounting to felony, are thus declared by a series of statutes which I shall recite in the order of time. And, first, by statute 27 Edw. I. c. 3, none shall bring pollards and crockards, which were foreign coins of base metal, into the realm, on pain of forfeiture of life and goods. By statute 9 Edw. III. st. 2, no sterling money shall be melted down, upon pain of forfeiture thereof **99]By statute 17 Edw. III., none shall be so hardy to bring false and ill money into the realm, on pain of forfeiture of life and member by the persons importing, and the searchers permitting such importation.3 By statute 3 Hen. V. st. 1, to make, coin, buy, or bring into the realm any gally-half-pence, fuskins, or dotkins, in order to utter them, is felony; and knowingly to receive or pay either them or blanks(r) is forfeiture of a hundred shillings. By statute 14 Eliz. c. 3, such as forge any foreign coin, although it be not made current here by proclamation, shall (with their aiders and abettors) be guilty of misprision of treason; a crime which we shall hereafter consider.4 By statute 13 & 14 Car. II. c. 31, the offence of melting down any current silver money shall be punished with forfeiture of the same, and also the double value; and the offender, if a freeman of any town, shall be disfranchised; if not, shall suffer six months’ imprisonment. By statute 6 & 7 W. III. c. 17, if any person buys or sells, or knowingly has in his custody, any clippings or filings of the coin, he shall forfeit the same and 500l., one moiety to the king and the other to the informer, and be branded in the cheek with the letter R. By statute 8 & 9 W. III. c. 26, if any person shall blanch or whiten copper for sale, (which makes it resemble silver,) or buy or sell, or offer to sell, any malleable composition which shall be heavier than silver and look, touch, and wear like gold, but be beneath the standard; or if any person shall receive or pay at a less rate than it imports to be of (which demonstrates a consciousness of its baseness, and a fraudulent design) any counterfeit or diminished milled money of this kingdom, not being cut in pieces; (an operation which is expressly directed to be performed when any such money shall be produced in evidence, and which any person, to whom any gold or silver money is tendered, is empowered, by statutes 9 & 10 W. III. c. 21, 13 Geo. III. c. 71, and 14 Geo. III. c. 70, to perform at his own hazard, and the officers of the exchequer and receivers-general of the taxes are particularly required to perform;) all such persons shall be guilty of felony, and may be prosecuted for the same at any time within three months after the offence committed.5 *[*100But these precautions not being found sufficient to prevent the uttering of false or diminished money, which was only a misdemeanour at common law, it is enacted, by statute 15 & 16 Geo. II. c. 28, that if any person shall utter or tender in payment6 any counterfeit coin, knowing it so to be, he shall for the first offence be imprisoned six months, and find sureties for his good behaviour for six months more; for the second offence, shall be imprisoned two years, and find sureties for two years longer; and for the third offence, shall be guilty of felony without benefit of clergy.7 Also, if a person knowingly tenders in payment any counterfeit money, and at the same time has more in his custody, or shall, within ten days after, knowingly tender other false money, he shall be deemed a common utterer of counterfeit money, and shall for the first offence be imprisoned one year, and find sureties for his good behaviour for two years longer; and for the second be guilty of felony without benefit of clergy. By the same statute, it is also enacted, that if any person counterfeits the copper coin he shall suffer two years’ imprisonment, and find sureties for two years more. By statute 11 Geo. III. c. 40, persons counterfeiting copper half-pence or farthings, with their abettors, or buying, selling, receiving, or putting off any counterfeit copper money (not being cut in pieces or melted down) at a less value than it imports to be of, shall be guilty of single felony.8 And by a temporary statute, (14 Geo. III. c. 42,) if any quantity of money, exceeding the sum of five pounds, being or purporting to be the silver coin of this realm, but below the standard of the mint in weight or fineness, shall be imported into Great Britain or Ireland, the same shall be forfeited in equal moieties to the crown and prosecutor.9 Thus much for offences relating to the coin, as well misdemeanours as felonies, which I thought it most convenient to consider in one and the same view.

2. Felonies against the king’s council(s) are these: First, by statute 3 Hen. VII. c. 14, if any sworn servant of the king’s household conspires or confederates to kill any lord of this **101]realm, or other person, sworn of the king’s council, he shall be guilty of felony. Secondly, by statute 9 Anne, c. 16, to assault, strike, wound, or attempt to kill any privy counsellor in the execution of his office is made felony without benefit of clergy.10

3. Felonies in serving foreign states, which service is generally inconsistent with allegiance to one’s natural prince, are restrained and punished by statute 3 Jac. I. c. 4, which makes it felony for any person whatever to go out of the realm, to serve any foreign prince, without having first taken the oath of allegiance before his departure. And it is felony also for any gentleman, or person of higher degree, or who hath borne any office in the army, to go out of the realm to serve such foreign prince or state, without previously entering into a bond, with two sureties, not to be reconciled to the see of Rome, or enter into any conspiracy against his natural sovereign. And further, by statute 9 Geo. II. c. 30, enforced by statute 29 Geo. II. c. 17, if any subject of Great Britain shall enlist himself, or if any person shall procure him to be enlisted, in any foreign service, or detain or embark him for that purpose, without license under the king’s sign-manual, he shall be guilty of felony without benefit of clergy; but if the person so enlisted or enticed shall discover his seducer within fifteen days, so as he may be apprehended and convicted of the same, he shall be indemnified. By statute 29 Geo. II. c. 17, it is moreover enacted that to serve under the French king as a military officer shall be felony without benefit of clergy; and to enter into the Scotch brigade in the Dutch service, without previously taking the oaths of allegiance and abjuration, shall be a forfeiture of 500l.11

4. Felony by embezzling or destroying the king’s armour or warlike stores is, in the first place, so declared to be by statute 31 Eliz. c. 4, which enacts that if any person having the charge or custody of the king’s armour, ordnance, ammunition, or habiliments of war, or of any victual, provided for victualling the king’s soldiers or mariners, shall, either for gain, or to impede his majesty’s service, embezzle the same *[*102to the value of twenty shillings, such offence shall be felony. And the statute 22 Car. II. c. 5 takes away the benefit of clergy from this offence,12 and from stealing the king’s naval stores to the value of twenty shillings; with a power for the judge, after sentence, to transport the offender for seven years. Other inferior embezzlements and misdemeanours that fall under this denomination are punished, by statutes 9 & 10 W. III. c. 41, 1 Geo. I. c. 25, 9 Geo. I. c. 8, and 17 Geo. II. c. 40, with fine, corporal punishment, and imprisonment.13 And, by statute 12 Geo. III. c. 24, to set on fire, burn, or destroy any of his majesty’s ships of war, whether built, building, or repairing; or any of the king’s arsenals, magazines, dock-yards, rope-yards, or victualling-offices, or materials thereunto belonging; or military, naval, or victualling stores, or ammunition; or causing, aiding, procuring, abetting, or assisting in such offence, shall be felony without benefit of clergy.

5. Desertion from the king’s armies in time of war, whether by land or sea, in England, or in parts beyond the sea, is, by the standing laws of the land, (exclusive of the annual acts of parliament to punish mutiny and desertion,) and particularly by statute 18 Hen. VI. c. 19, and 5 Eliz. c. 5, made felony, but not without benefit of clergy. But, by the statute 2 & 3 Edw. VI. c. 2, clergy is taken away from such deserters, and the offence is made triable by the justices of every shire. The same statutes punish other inferior military offences with fines, imprisonment, and other penalties.14

CHAPTER VIII.

OF PRÆMUNIRE.

**103]A third species of offence more immediately affecting the king and his government, though not subject to capital punishment, is that of præmunire, so called from the words of the writ preparatory to the prosecution thereof: “præmunire(a)facias A. B.” cause A. B. to be forewarned that he appear before us to answer the contempt wherewith he stands charged: which contempt is particularly recited in the preamble to the writ.(b)1 It took its original from the exorbitant power claimed and exercised in England by the pope, which, even in the days of blind zeal, was too heavy for our ancestors to bear.

It may justly be observed that religious principles, which (when genuine and pure) have an evident tendency to make their professors better citizens as well as better men, have (when perverted and erroneous) been usually subversive of civil government, and been made both the cloak and the instrument of every pernicious design that can be harboured in the heart of man. The unbounded authority that was exercised by the Druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet, both witness to the truth of that antient universal observation, that, in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is, therefore, the glory of the church of England that she inculcates due obedience to lawful authority, and hath been (as her prelates, on **104]a trying occasion, once expressed it)(c) in her principles and practice ever most unquestionably loyal. The clergy of her persuasion, holy in their doctrines and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowledge no guide but the Scriptures, so, in matters of external polity and of private right, they derive all their title from the civil magistrate; they look up to the king as their head, to the parliament as their lawgiver, and pride themselves in nothing more justly than in being true members of the church, emphatically by law established. Whereas the notions of ecclesiastical liberty, in those who differ from them, as well in one extreme as the other, (for I here only speak of extremes,) are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights which reason and the original contract of every free state in the universe have vested in the sovereign power; and equally aiming at a distinct independent supremacy of their own, where spiritual men and spiritual causes are concerned. The dreadful effects of such a religious bigotry, when actuated by erroneous principles, even of the Protestant kind, are sufficiently evident from the history of the anabaptists in Germany, the covenanters in Scotland, and that deluge of sectaries in England who murdered their sovereign, overturned the church and monarchy, shook every pillar of law, justice, and private property, and most devoutly established a kingdom of the saints in their stead. But these horrid devastations, the effects of mere madness, or of zeal that was nearly allied to it, though violent and tumultuous, were but of a short duration. Whereas the progress of the papal policy, long actuated by the steady counsels of successive pontiffs, took deeper root, and was at length in some places with difficulty, in others never yet, extirpated. For this we might call to witness the black intrigues of the Jesuits, so lately triumphant over Christendom, but now universally abandoned by even the Roman Catholic powers; but the subject of our present *[*105chapter rather leads us to consider the vast strides which were formerly made in this kingdom by the popish clergy; how nearly they arrived to effecting their grand design; some few of the means they made use of for establishing their plan; and how almost all of them have been defeated or converted to better purposes by the rigour of our free constitution and the wisdom of successive parliaments.

The antient British church, by whomsoever planted, was a stranger to the bishop of Rome and all his pretended authority. But, the pagan Saxon invaders having driven the professors of Christianity to the remotest corners of our island, their own conversion was afterwards effected by Augustin the monk, and other missionaries from the court of Rome. This naturally introduced some few of the papal corruptions in point of faith and doctrine; but we read of no civil authority claimed by the pope in these kingdoms till the era of the Norman conquest, when the then reigning pontiff having favoured duke William in his projected invasion by blessing his host and consecrating his banners, he took that opportunity also of establishing his spiritual encroachments, and was even permitted so to do by the policy of the conqueror, in order more effectually to humble the Saxon clergy and aggrandize his Norman prelates; prelates who, being bred abroad in the doctrine and practice of slavery, had contracted a reverence and regard for it, and took a pleasure in riveting the chains of a free-born people.

The most stable foundation of legal and rational government is a due subordination of rank and a gradual scale of authority; and tyranny also itself is most surely supported by a regular increase of despotism, rising from the slave to the sultan; with this difference, however, that the measure of obedience in the one is grounded on the principles of society, and is extended no further than reason and necessity will warrant; in the other it is limited only by absolute will and pleasure, without permitting the inferior to examine the title upon which it is founded. More effectually, therefore, to enslave the consciences and minds of the people, the Romish *[*106clergy themselves paid the most implicit obedience to their own superiors or prelates; and they, in their turns, were as blindly devoted to the will of the sovereign pontiff, whose decisions they held to be infallible, and his authority coextensive with the Christian world. Hence his legates a latere were introduced into every kingdom of Europe; his bulles and decretal epistles became the rule both of faith and discipline; his judgment was the final resort in all cases of doubt or difficulty; his decrees were enforced by anathemas and spiritual censures; he dethroned even kings that were refractory, and denied to whole kingdoms (when undutiful) the exercise of Christian ordinances and the benefits of the gospel of God.

But, though the being spiritual head of the church was a thing of great sound, and of greater authority, among men of conscience and piety, yet the court of Rome was fully apprized that (among the bulk of mankind) power cannot be maintained without property; and therefore its attention began very early to be riveted upon every method that promised pecuniary advantage. The doctrine of purgatory was introduced, and with it the purchase of masses to redeem the souls of the deceased. New-fangled offences were created, and indulgences were sold to the wealthy for liberty to sin without danger. The canon law took cognizance of crimes, enjoined penance pro salute animæ, and commuted that penance for money. Non-residence and pluralities among the clergy, and marriages among the laity related within the seventh degree, were strictly prohibited by canon; but dispensations were seldom denied to those who could afford to buy them. In short, all the wealth of Christendom was gradually drained by a thousand channels into the coffers of the holy see.

The establishment also of the feodal system in most of the governments of Europe, whereby the lands of all private proprietors were declared to be holden of the prince, gave a hint to the court of Rome for usurping a similar authority over all the preferments of the church, which began first in Italy, and gradually spread itself to England. The pope became a **107]feodal lord, and all ordinary patrons were to hold their right of patronage under this universal superior. Estates held by feodal tenure, being originally gratuitous donations, were at that time denominated beneficia; their very name, as well as constitution, was borrowed, and the care of the souls of a parish thence came to be denominated a benefice. Lay fees were conferred by investiture or delivery of corporal possession; and spiritual benefices, which at first were universally donative, now received in like manner a spiritual investiture by institution from the bishop, and induction under his authority. As lands escheated to the lord in defect of a legal tenant, so benefices lapsed to the bishop, upon non-presentation by the patron, in the nature of a spiritual escheat. The annual tenths collected from the clergy were equivalent to the feodal render, or rent reserved upon a grant; the oath of canonical obedience was copied from the oath of fealty required from the vassal by his superior; and the primer seisins of our military tenures, whereby the first profits of an heir’s estate were cruelly extorted by his lord, gave birth to as cruel an exaction of first-fruits from the beneficed clergy. And the occasional aids and talliages levied by the prince on his vassals gave a handle to the pope to levy, by the means of his legates a latere, Peter-pence and other taxations.

At length the holy father went a step beyond any example of either emperor or feodal lord. He reserved to himself, by his own apostolical authority,(d) the presentation to all benefices which became vacant while the incumbent was attending the court of Rome upon any occasion, or on his journey thither or back again; and moreover such also as became vacant by his promotion to a bishopric or abbey: “etiamsi ad illa personæ consueverint et debuerint per electionem aut quemvis alium modum assumi.” And this last, the canonists declared, was no detriment at all to the patron, being only like the change of a life in a feodal estate by the lord. Dispensations to avoid these vacancies begat the doctrine of commendams; and papal provisions were the previous nomination to such benefices, by a kind of anticipation, before they **108]became actually void, though afterwards indiscriminately applied to any right of patronage exerted or usurped by the pope. In consequence of which, the best livings were filled by Italian and other foreign clergy, equally unskilled in and adverse to the laws and constitution of England. The very nomination to bishoprics, that antient prerogative of the crown, was wrested from king Henry the First, and afterwards from his successor, king John, and seemingly, indeed, conferred on the chapters belonging to each see; but, by means of the frequent appeals to Rome, through the intricacy of the laws which regulated canonical elections, was eventually vested in the pope. And, to sum up this head with a transaction most unparalleled and astonishing in its kind, pope Innocent III. had at length the effrontery to demand, and king John had the meanness to consent to, a resignation of his crown to the pope, whereby England was to become forever St. Peter’s patrimony; and the dastardly monarch reaccepted his sceptre from the hands of the papal legate, to hold as the vassal of the holy see at the annual rent of a thousand marks.

Another engine set on foot, or at least greatly improved, by the court of Rome, was a master-piece of papal policy. Not content with the ample provision of tithes which the law of the land had given to the parochical clergy, they endeavored to grasp at the lands and inheritances of the kingdom, and (had not the legislature withstood them) would by this time have probably been masters of every foot of ground in the kingdom. To this end they introduced the monks of the Benedictine and other rules, men of sour and austere religion, separated from the world and its concerns by a vow of perpetual celibacy, yet fascinating the minds of the people by pretences to extraordinary sanctity, while all their aim was to aggrandize the power and extend the influence of their grand superior, the pope. And as, in those times of civil tumult, great rapines and violence were daily committed by overgrown lords and their adherents, they were taught to believe that founding a monastery a little before their death would atone for a life of incontinence, disorder, and bloodshed. Hence innumerable abbeys and religious houses were built within a *[*109century after the conquest, and endowed not only with the tithes of parishes which were ravished from the secular clergy, but also with lands, manors, lordships, and extensive baronies. And the doctrine inculcated was, that whatever was so given to, or purchased by, the monks and friars, was consecrated to God himself; and that to alienate or take it away was no less than the sin of sacrilege.

I might here have enlarged upon other contrivances, which will occur to the recollection of the reader, set on foot by the court of Rome for effecting an entire exemption of its clergy from any intercourse with the civil magistrate, such as the separation of the ecclesiastical court from the temporal; the appointment of its judges by merely spiritual authority, without any interposition from the crown; the exclusive jurisdiction it claimed over all ecclesiastical persons and causes; and the privilegium clericale, or benefit of clergy, which delivered all clerks from any trial or punishment except before their own tribunal. But the history and progress of ecclesiastical courts,(e) as well as of purchases in mortmain,(f) have already been fully discussed in the preceding book; and we shall have an opportunity of examining at large the nature of the privilegium clericale in the progress of the present one. And therefore I shall only observe at present, that notwithstanding this plan of pontifical power was so deeply laid, and so indefatigably pursued by the unwearied politics of the court of Rome through a long succession of ages; notwithstanding it was polished and improved by the united endeavours of a body of men who engrossed all the learning of Europe for centuries together; notwithstanding it was firmly and resolutely executed by persons the best calculated for establishing tyranny and despotism, being fired with a bigoted enthusiasm, (which prevailed not only among the weak and simple, but even among those of the best natural and acquired endowments,) unconnected with their fellow-subjects, and totally indifferent to what might befall that posterity to which they bore no endearing relation: yet it vanished into *[*110nothing when the eyes of the people were a little enlightened, and they set themselves with vigour to oppose it. So vain and ridiculous is the attempt to live in society without acknowledging the obligations which it lays us under, and to affect an entire independence of that civil state which protects us in all our rights, and gives us every other liberty, that only excepted of despising the laws of the community.

Having thus in some degree endeavoured to trace out the original and subsequent progress of the papal usurpations in England, let us now return to the statutes of præmunire, which were framed to encounter this overgrown yet increasing evil. King Edward I., a wise and magnanimous prince, set himself in earnest to shake off this servile yoke.(g) He would not suffer his bishops to attend a general council till they had sworn not to receive the papal benediction. He made light of all papal bulles and processes; attacking Scotland in defiance of one, and seizing the temporalities of his clergy, who, under pretence of another, refused to pay a tax imposed by parliament. He strengthened the statutes of mortmain, thereby closing the great gulf in which all the lands of the kingdom were in danger of being swallowed. And, one of his subjects having obtained a bulle of excommunication against another, he ordered him to be executed as a traitor, according to the antient law.(h) And in the thirty-fifth year of his reign was made the first statute against papal provisions, being, according to Sir Edward Coke,(i) the foundation of all the subsequent statutes of præmunire, which we rank as an offence immediately against the king, because every encouragement of the papal power is a diminution of the authority of the crown.

In the weak reign of Edward the Second the pope again endeavoured to encroach, but the parliament manfully withstood him; and it was one of the principal articles charged against that unhappy prince, that he had given allowance to the bulles of the see of Rome. But Edward the Third was of a temper extremely different: and, to remedy these **111]inconveniences first by gentle means, he and his nobility wrote an expostulation to the pope; but receiving a menacing and contemptuous answer, withal acquainting him that the emperor, (who a few years before, at the diet of Nuremberg, ad 1323, had established a law against provisions,)(k) and also the king of France, had lately submitted to the holy see, the king replied that if both the emperor and the French king should take the pope’s part, he was ready to give battle to them both in defence of the liberties of the crown. Hereupon more sharp and penal laws were devised against provisors,(l) which enact, severally, that the court of Rome shall not present or collate to any bishopric or living in England; and that whoever disturbs any patron in the presentation to a living by virtue of a papal provision, such provisor shall pay fine and ransom to the king at his will, and be imprisoned till he renounces such provision; and the same punishment is inflicted on such as cite the king, or any of his subjects, to answer in the court of Rome. And when the holy see resented these proceedings, and pope Urban V. attempted to revive the vassalage and annual rent to which king John had subjected his kingdom, it was unanimously agreed by all the estates of the realm, in parliament assembled, 40 Edw. III., that king John’s donation was null and void, being without the concurrence of parliament, and contrary to his coronation-oath: and all the temporal nobility and commons engaged, that if the pope should endeavour by process or otherwise to maintain these usurpations, they would resist and withstand him with all their power.(m)

In the reign of Richard the Second it was found necessary to sharpen and strengthen these laws, and therefore it was enacted, by statutes 3 Ric. II. c. 3, and 7 Ric. II. c. 12, first, that no alien should be capable of letting his benefice to farm; in order to compel such as had crept in, at least to reside on their preferments; and afterwards, that no alien **112]should be capable to be presented to any ecclesiastical preferment, under the penalty of the statutes of provisors. By the statute 12 Ric. II. c. 15, all liegemen of the king, accepting of a living by any foreign provision, are put out of the king’s protection, and the benefice made void. To which the statute 13 Ric. II. st. 2, c. 2 adds banishment and forfeiture of lands and goods: and, by c. 3 of the same statute, any person bringing over any citation or excommunication from beyond sea on account of the execution of the foregoing statutes of provisors shall be imprisoned, forfeit his goods and lands, and moreover suffer pain of life and member.

In the writ for the execution of all these statutes the words præmunire facias, being (as we said) used to command a citation of the party, have denominated in common speech not only the writ, but the offence itself of maintaining the papal power, by the name of præmunire. And accordingly the next statute I shall mention, which is generally referred to by all subsequent statutes, is usually called the statute of præmunire. It is the statute 16 Ric. II. c. 5, which enacts that whoever procures at Rome, or elsewhere, any translations, processes, excommunications, bulles, instruments, or other things which touch the king, against him, his crown, and realm, and all persons aiding and assisting therein, shall be put out of the king’s protection, their lands and goods forfeited to the king’s use, and they shall be attached by their bodies to answer to the king and his council; or process of præmunire facias shall be made out against them as in other cases of provisors.

By the statute 2 Hen. IV. c. 3, all persons who accept any provision from the pope, to be exempt from canonical obedience to their proper ordinary, are also subjected to the penalties of præmunire. And this is the last of our antient statutes touching this offence; the usurped civil power of the bishop of Rome being pretty well broken down by these statutes, as his usurped religious power was in about a century afterwards; the spirit of the nation being so much raised *[*113against foreigners that about this time, in the reign of Henry the Fifth, the alien priories, or abbeys for foreign monks, were suppressed, and their lands given to the crown. And no further attempts were afterwards made in support of these foreign jurisdictions.

A learned writer, before referred to, is therefore greatly mistaken when he says(n) that in Henry the Sixth’s time the archbishop of Canterbury, and other bishops, offered to the king a large supply if he would consent that all laws against provisors, and especially the statute 16 Ric. II., might be repealed, but that this motion was rejected. This account is incorrect in all its branches. For, first, the application, which he probably means, was made not by the bishops only, but by the unanimous consent of a provisional synod assembled in 1439, 18 Hen. VI., that very synod which at the same time refused to confirm and allow a papal bulle which then was laid before them. Next, the purport of it was not to procure a repeal of the statutes against provisors, or that of Richard II. in particular; but to request that the penalties thereof, which by forced construction were applied to all that sued in the spiritual, and even in many temporal, courts of this realm might be turned against the proper objects only: those who appealed to Rome, or to any foreign jurisdictions; the tenor of the petition being, “that those penalties should be taken to extend only to those that commenced any suits or procured any writs or public instruments at Rome, or elsewhere out of England; and that no one should be prosecuted upon that statute for any suit in the spiritual courts or lay jurisdictions of this kingdom.” Lastly, the motion was so far from being rejected that the king promised to recommend it to the next parliament, and in the mean time that no one should be molested upon this account. And the clergy were so satisfied with their success that they granted to the king a whole tenth upon this oceasion.(o)

*[*114And, indeed, so far was the archbishop, who presided in this synod, from countenancing the usurped power of the pope in this realm, that he was ever a firm opposer of it. And, particularly in the reign of Henry the Fifth, he prevented the king’s uncle from being then made a cardinal and legate a latere from the pope; upon the mere principle of its being within the mischief of papal provisions, and derogatory from the liberties of the English church and nation. For, as he expressed himself to the king in his letter upon that subject, “he was bound to oppose it by his ligeance, and also to quit himself to God and the church of this land, of which God and the king had made him governor.” This was not the language of a prelate addicted to the slavery of the see of Rome; but of one who was indeed of principles so very opposite to the papal usurpations that in the year preceding this synod, 17 Hen. VI., he refused to consecrate a bishop of Ely that was nominated by pope Eugenius IV. A conduct quite consonant to his former behaviour, in 6 Hen. VI., when he refused to obey the commands of pope Martin V., who had required him to exert his endeavours to repeal the statute of præmunire, (“execrabile illud statutum,” as the holy father phrases it;) which refusal so far exasperated the court of Rome against him that at length the pope issued a bulle to suspend him from his office and authority, which the archbishop disregarded and appealed to a general council. And so sensible were the nation of their primate’s merit that the lords spiritual and temporal, and also the university of Oxford, wrote letters to the pope in his defence; and the house of commons addressed the king to send an embassador forthwith to his holiness on behalf of the archbishop, who had incurred the displeasure of the pope for opposing the excessive power of the court of Rome.(p)

*[*115This, then, is the original meaning of the offence which we call præmunire, viz., introducing a foreign power into this land, and creating imperium in imperio by paying that obedience to papal process which constitutionally belouged to the king alone, long before the reformation in the reign of Henry the Eighth; at which time the penalties of præmunire were indeed extended to more papal abuses than before, as the kingdom then entirely renounced the authority of the see of Rome, though not all the corrupted doctrines of the Roman church. And therefore, by the several statutes of 24 Hen. VIII. c. 12, and 25 Hen. VIII. c. 19 & 21, to appeal to Rome from any of the king’s courts, which (though illegal before) had at times been connived at, to sue to Rome for any license or dispensation, or to obey any process from thence, are made liable to the pains of præmunire. And, in order to restore to the king in effect the nomination of vacant bishoprics, and yet keep up the established forms, it is enacted, by statute 25 Hen. VIII. c. 20, that if the dean and chapter refuse to elect the person named by the king, or any archbishop or bishop to confirm or consecrate him, they shall fall within the penalties of the statutes of præmunire. Also, by statute 5 Eliz. c. 1, to refuse the oath of supremacy will incur the pains of præmunire; and to defend the pope’s jurisdiction in this realm is a præmunire for the first offence, and high treason for the second. So too, by statute 13 Eliz. c. 2, to import any agnus Dei, crosses, beads, or other superstitious things pretended to be hallowed by the bishop of Rome, and tender the same to be used; or to receive the same with such intent and not discover the offender; or if a justice of the peace, knowing thereof, shall not within fourteen days declare it to a privy counsellor, they all incur præmunire.2 But importing or selling massbooks, or other popish books, is, by statute 3 Jac. I. c. 5, § 25, only liable to the penalty of forty shillings. Lastly, to contribute to the maintenance of a Jesuit’s college, or any popish seminary whatever, beyond sea, or any person in the same, or to contribute to the maintenance of any Jesuit or popish priest in England, is by statute 27 Eliz. c. 2 made liable to the penalties of præmunire.

**116]Thus far the penalties of præmunire seem to have kept within the proper bounds of their original institution, the depressing the power of the pope: but, they being pains of no inconsiderable consequence, it has been thought fit to apply the same to other heinous offences, some of which bear more and some less relation to this original offence, and some no relation at all.

Thus, 1. By the statute 1 & 2 Ph. and Mar. c. 8, to molest the possessors of abbey lands granted by parliament to Henry the Eighth and Edward the Sixth is a præmunire. 2. So likewise is the offence of acting as a broker or agent in any usurious contract, when above ten per cent. interest is taken, by statute 13 Eliz. c. 8.3 3. To obtain any stay of proceedings, other than by arrest of judgment or writ of error, in any suit for a monopoly, is likewise a præmunire, by statute 21 Jac. I. c. 3. 4. To obtain an exclusive patent for the sole making or importation of gunpowder or arms, or to hinder others from importing them, is also a præmunire, by two statutes; the one 16 Car. I. c. 21, the other 1 Jac. II. c. 8.4 5. On the abolition, by statute 12 Car. II. c. 24, of purveyance,(q) and the prerogative of pre-emption, or taking any victual, beasts, or goods, for the king’s use, at a stated price, without consent of the proprietor, the exertion of any such power for the future was declared to incur the penalties of præmunire. 6. To assert maliciously and advisedly, by speaking or writing, that both or either house of parliament have a legislative authority without the king, is declared a præmunire by statute 13 Car. II. c. 1. 7. By the habeas corpus act also, 31 Car. II. c. 2, it is a præmunire, and incapable of the king’s pardon, besides other heavy penalties,(r) to send any subject of this realm a prisoner into parts beyond the seas. 8. By the statute 1 W. and M. st. 1, c. 8, persons of eighteen years of age refusing to take the new oaths of allegiance, as well as supremacy, upon tender by the proper magistrate, are subject to the penalties of a præmunire;5 and by statute 7 & 8 *[*117W. III. c. 24, serjeants, counsellors, proctors, attorneys, and all officers of courts practising without having taken the oaths of allegiance and supremacy and subscribing the declaration against popery, are guilty of a præmunire, whether the oaths be tendered or no. 9. By the statute 6 Anne, c. 7, to assert maliciously and directly, by preaching, teaching, or advised speaking, that the then pretended prince of Wales, or any person other than according to the acts of settlement and union, hath any right to the throne of these kingdoms, or that the king and parliament cannot make laws to limit the descent of the crown, such preaching, teaching, or advised speaking is a præmunire; as writing, printing, or publishing the same doctrines amounted, we may remember, to high treason. 10. By statute 6 Anne, c. 23, if the assembly of peers in Scotland, convened to elect their sixteen representatives in the British parliament, shall presume to treat of any other matter save only the election, they incur the penalties of a præmunire. 11. The statute 6 Geo. I. c. 18 (enacted in the year after the infamous South-Sea project had beggared half the nation) makes all unwarrantable undertakings by unlawful subscriptions, then commonly known by the names of bubbles, subject to the penalties of a præmunire.6 12. The statute 12 Geo III. c. 11 subjects to the penalties of the statute of præmunire all such as knowingly and wilfully solemnize, assist, or are present at any forbidden marriage of such of the descendants of the body of king George II. as are by that act prohibited to contract matrimony without the consent of the crown.(s)

Having thus inquired into the nature and several species of præmunire, its punishment may be gathered from the foregoing statutes, which are thus shortly summed up by Sir Edward Coke:(t) “that from the conviction the defendant shall be out of the king’s protection, and his lands and tenements, goods and chattels, forfeited to the king; and that his body shall remain in prison at the king’s pleasure; *[*118or (as other authorities have it) during life:”(u) both which amount to the same thing; as the king by his prerogative may any time remit the whole or any part of the punishment, except in the case of transgressing the statute of habeas corpus. These forfeitures here inflicted do not (by the way) bring this offence within our former definition of felony, being inflicted by particular statutes and not by the common law. But so odious, Sir Edward Coke adds, was this offence of præmunire that a man that was attainted of the same might have been slain by any other man without danger of law; because it was provided by law(w) that any man might do to him as to the king’s enemy; and any man may lawfully kill an enemy However, the position itself, that it is at any time lawful to kill an enemy, is by no means tenable: it is only lawful, by the law of nature and nations, to kill him in the heat of battle or for necessary self-defence. And to obviate such savage and mistaken notions,(x) the statute 5 Eliz. c. 1 provides that it shall not be lawful to kill any person attainted in a præmunire, any law, statute, opinion, or exposition of law to the contrary notwithstanding.7 But still such delinquent, though protected as a part of the public from public wrongs, can bring no action for any private injury, how atrocious soever, being so far out of the protection of the law that it will not guard his civil rights nor remedy any grievance which he as an individual may suffer. And no man, knowing him to be guilty, can with safety give him comfort, aid, or relief.(y)8

CHAPTER IX.

OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING AND GOVERNMENT.

**119]The fourth species of offences more immediately against the king and government are entitled misprisions and contempts.

Misprisions (a term derived from the old French mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offences as are under the degree of capital, but nearly bordering thereon: and it is said that a misprision is contained in every treason and felony whatsoever, and that, if the king so please, the offender may be proceeded against for the misprision only.(a) And upon the same principle, while the jurisdiction of the starchamber subsisted, it was held that the king might remit a prosecution for treason, and cause the delinquent to be censured in that court, merely for a high misdemeanour; as happened in the case of Roger, earl of Rutland, in 43 Eliz., who was concerned in the earl of Essex’s rebellion.(b) Misprisions are generally divided into two sorts: negative, which consist in the concealment of something which ought to be revealed; and positive, which consist in the commission of something which ought not to be done.

**120]I. Of the first, or negative kind, is what is called misprision of treason; consisting in the bare knowledge and concealment of treason, without any degree of assent thereto: for any assent makes the party a principal traitor; as indeed the concealment, which was construed aiding and abetting, did at the common law: in like manner as the knowledge of a plot against the state, and not revealing it, was a capital crime at Florence and other states of Italy.(c) But it is now enacted, by the statute 1 & 2 Ph. and M. c. 10, that a bare concealment of treason shall only be held a misprision. This concealment becomes criminal if the party apprized of the treason does not, as soon as conveniently may be, reveal it to some judge of assize or justice of the peace.(d) But if there be any probable circumstances of assent, as if one goes to a treasonable meeting, knowing beforehand that a conspiracy is intended against the king; or, being in such company once by accident, and having heard such treasonable conspiracy, meets the same company again, and hears more of it, but conceals it; this is an implied assent in law, and makes the concealer guilty of actual high treason.(e)1

There is also one positive misprision of treason, created so by act of parliament. The statute 13 Eliz. c. 22 enacts that those who forge foreign coin, not current in this kingdom, their aiders, abettors, and procurers, shall all be guilty of misprision of treason. For though the law would not put foreign coin upon quite the same footing as our own; yet, if the circumstances of trade concur, the falsifying of it may be attended with consequences almost equally pernicious to the public: as the counterfeiting of Portugal money would be at present; and therefore the law has made it an offence just below capital, and that is all. For the punishment of misprision of treason is loss of the profits of land during life, forfeiture of goods, and imprisonment during life.(f)3 Which total forfeiture of the goods was originally inflicted while *[*121the offence amounted to principal treason, and of course included in it a felony by the common law; and therefore is no exception to the general rule laid down in a former chapter,(g) that wherever an offence is punished by such total forfeiture it is felony at the common law.

Misprision of felony is also the concealment of a felony which a man knows but never assented to; for, if he assented, this makes him either principal or accessory. And the punishment of this, in a public officer, by the statute Westm. 1, 3 Edw. I. c. 9, is imprisonment for a year and a day; in a common person, imprisonment for a less discretionary time; and, in both, fine and ransom at the king’s pleasure: which pleasure of the king must be observed, once for all, not to signify any extrajudicial will of the sovereign, but such as is declared by his representatives, the judges in his courts of justice; “voluntas regis in curia, non in camera.”(h)

There is also another species of negative misprisions: namely, the concealing of treasure-trove, which belongs to the king or his grantees by prerogative royal: the concealment of which was formerly punishable by death;(i) but now only by fine and imprisonment.(j)

II. Misprisions which are merely positive are generally denominated contempts or high misdemeanours; of which

1. The first and principal is the mal-administration of such high officers as are in public trust and employment. This is usually punished by the method of parliamentary impeachment; wherein such penalties, short of death, are inflicted, as to the wisdom of the peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability. Hitherto also may be referred the *[*122offence of embezzling the public money, called among the Romans peculatus, which the Julian law punished with death in a magistrate, and with deportation, or banishment, in a private person.(k) With us it is not a capital crime, but subjects the committer of it to a discretionary fine and imprisonment.4 Other misprisions are, in general, such contempts of the executive magistrate as demonstrate themselves by some arrogant and undutiful behaviour towards the king and government. These are

2. Contempts against the king’s prerogative. As, by refusing to assist him for the good of the public, either in his councils, by advice, if called upon, or in his wars, by personal service for defence of the realm, against a rebellion or invasion.(l) Under which class may be ranked the neglecting to join the posse comitatus, or power of the county, being thereunto required by the sheriff or justices, according to the statute 2 Hen. V. c. 8, which is a duty incumbent upon all that are fifteen years of age, under the degree of nobility and able to travel.(m) Contempts against the prerogative may also be by preferring the interests of a foreign potentate to those of their own, or doing or receiving any thing that may create an undue influence in favour of such extrinsic power; as by taking a pension from any foreign prince without the consent of the king.(n) Or by disobeying the king’s lawful commands: whether by writs issuing out of his courts of justice, or by a summons to attend his privy council, or by letters from the king to a subject commanding him to return from beyond seas, (for disobedience to which his lands shall be seized till he does return, and himself afterwards punished,) or by his writ of ne exeat regnum, or proclamation commanding the subject to stay at home.(o) Disobedience to any of these commands is a high misprision and contempt; and so, lastly, is disobedience to any act of parliament where no particular penalty is assigned; for then it is punishable, like the rest of **123]these contempts, by fine and imprisonment, at the discretion of the king’s courts of justice.(p)

3. Contempts and misprisions against the king’s person and government may be by speaking or writing against them, cursing or wishing him ill, giving out scandalous stories concerning him, or doing any thing that may tend to lessen him in the esteem of his subjects, may weaken his government, or may raise jealousies between him and his people.5 It has been also held an offence of this species to drink to the pious memory of a traitor; or for a clergyman to absolve persons at the gallows who there persist in the treasons for which they die; these being acts which impliedly encourage rebellion. And for this species of contempt a man may not only be fined and imprisoned, but suffer the pillory,6 or other infamous corporal punishment;(q) in like manner as in the antient German empire such persons as endeavoured to sow sedition, and disturb the public tranquillity, were condemned to become the objects of public notoriety and derision, by carrying a dog upon their shoulders from one great town to another. The emperors Otho I. and Frederick Barbarossa inflicted this punishment on noblemen of the highest rank.(r)

4. Contempts against the king’s title, not amounting to treason or præmunire, are the denial of his right to the crown in common and unadvised discourse; for, if it be by advisedly speaking, we have seen(s) that it amounts to a præmunire. This heedless species of contempt is, however, punished by our law with fine and imprisonment. Likewise, if any person shall in any wise hold, affirin, or maintain that the common law of this realm, not altered by parliament, ought not to direct the right of the crown of England; this is a misdemeanour, by statute 13 Eliz. c. 1, and punishable with forfeiture of goods and chattels. A contempt may also arise from refusing or neglecting to take the oaths appointed by statute for the better securing the government, and yet *[*124acting in a public office, place of trust, or other capacity, for which the said oaths are required to be taken, viz., those of allegiance, supremacy, and abjuration: which must be taken within six calendar months after admission. The penalties for this contempt, inflicted by statute 1 Geo. I. st. 2, c. 13, are very little, if any thing, short of those of a præmunire; being an incapacity to hold the said offices, or any other; to prosecute any suit; to be guardian or executor; to take any legacy or deed of gift; and to vote at any election for members of parliament; and after conviction the offender shall also forfeit 500l. to him or them that will sue for the same. Members, on the foundation of any college in the two universities, who by this statute are bound to take the oaths, must also register a certificate thereof in the college-register within one month after; otherwise, if the electors do not remove him, and elect another within twelve months, or after, the king may nominate a person to succeed him by his great seal or sign-manual. Besides thus taking the oaths for offices, any two justices of the peace may by the same statute summon, and tender the oaths to, any person whom they shall suspect to be disaffected; and every person refusing the same, who is properly called a non-juror, shall be adjudged a popish recusant convict, and subject to the same penalties that were mentioned in a former chapter;(t) which in the end may amount to the alternative of abjuring the realm, or suffering death as a felon.7

5. Contempts against the king’s palaces or courts of justice have been always looked upon as high misprisions; and by the antient law, before the conquest, fighting in the king’s palace, or before the king’s judges, was punished with death.(u) So too, in the old Gothic constitutions, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quæ sancta habebantur,—arces et aula regis,—denique locus quilibet præsente aut adventante rege.(v) And at present, with us, by the statute *[*12533 Hen. VIII. c. 12, malicious striking in the king’s palace, wherein his royal person resides, whereby blood is drawn, is punishable by perpetual imprisonment, and fine at the king’s pleasure, and also with loss of the offender’s right hand; the solemn execution of which sentence is prescribed in the statute at length.8

But striking in the king’s superior courts of justice, in Westminster hall, or at the assizes, is made still more penal than even in the king’s palace. The reason seems to be that those courts being antiently held in the king’s palace, and before the king himself, striking there included the former contempt against the king’s palace, and something more, viz., the disturbance of public justice. For this reason, by the antient common law before the conquest,(w) striking in the king’s court of justice, or drawing a sword therein, was a capital felony; [Editor: illegible character] our modern law retains so much of the antient severity as only to exchange one loss of life for the loss of the offending limb. Therefore a stroke or blow in such a court of justice, whether blood be drawn or not, or even assaulting a judge sitting in the court by drawing a weapon, without any blow struck, is punishable with the loss of the right hand, imprisonment for life, and forfeiture of goods and chattels, and of the profits of his lands during life.(x) A rescue also of a prisoner from any of the said courts, without striking a blow, is punished with perpetual imprisonment and forfeiture of goods, and of the profits of lands during life,(y) being looked upon as an offence of the same nature with the last; but only, as no blow is actually given, the amputation of the hand is excused. For the like reason, an affray or riot near the said courts, but out of their actual view, is punished only with fine and imprisonment.(z)9

**126]Not only such as are guilty of an actual violence, but of threatening or reproachful words to any judge sitting in the courts, are guilty of a high misprision, and have been punished with large fines, imprisonment, and corporal punishment.(a) And, even in the inferior courts of the king, an affray or contemptuous behaviour is punishable with a fine by the judges there sitting, as by the steward in a court-leet, or the like.(b)

Likewise all such as are guilty of any injurious treatment to those who are immediately under the protection of a court of justice are punishable by fine and imprisonment; as, if a man assaults or threatens his adversary for sueing him, a counsel or attorney for being employed against him, a juror for his verdict, or a gaoler or other ministerial officer for keeping him in custody, and properly executing his duty:(c) which offences, when they proceeded further than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods.(d)

Lastly, to endeavour to dissuade a witness from giving evidence, to disclose an examination before the privy council, or to advise a prisoner to stand mute, (all of which are impediments of justice,) are high misprisions, and contempts of the king’s courts, and punishable by fine and imprisonment.10 And antiently it was held that if one of the grand jury disclosed to any person indicted the evidence that appeared against him, he was thereby made accessory to the offence, if felony, and in treason a principal. And at this day it is agreed that he is guilty of a high misprision,(e) and liable to be fined and imprisoned.(f)11

CHAPTER X.

OF OFFENCES AGAINST PUBLIC JUSTICE.

*[*127The order of our distribution will next lead us to take into consideration such crimes and misdemeanours as more especially affect the commonwealth, or public polity of the kingdom; which, however, as well as those which are peculiarly pointed against the lives and security of private subjects, are also offences against the king as the pater-familias of the nation, to whom it appertains, by his regal office, to protect the community, and each individual therein, from every degree of injurious violence, by executing those laws which the people themselves, in conjunction with him, have enacted, or at least have consented to by an agreement either expressly made in the persons of their representatives, or by a tacit and implied consent, presumed and proved by immemorial usage.

The species of crimes which we have now before us is subdivided into such a number of inferior and subordinate classes that it would much exceed the bounds of an elementary treatise, and be insupportably tedious to the reader, were I to examine them all minutely or with any degree of critical accuracy. I shall therefore confine myself principally to general definitions or descriptions of this great variety of offences, and to the punishments inflicted by law for each particular offence, with now and then a few incidental observations; referring the student, for more particulars, to other voluminous authors, who have treated of these subjects with greater precision and more in detail than is consistent with the plan of these commentaries.

The crimes and misdemeanours that more especially affect the commonwealth may be divided into five species, viz., *[*128offences against public justice, against the public peace, against public trade, against the public health, and against the public police or economy; of each of which we will take a cursory view in their order.

First, then, of offences against public justice, some of which are felonious, whose punishment may extend to death; others only misdemeanours. I shall begin with those that are most penal, and descend gradually to such as are of less malignity.

1. Embezzling or vacating records, or falsifying certain other proceedings in a court of judicature, is a felonious offence against public justice. It is enacted, by statute 8 Hen. VI. c. 12, that if any clerk or other person shall wilfully take away, withdraw, or avoid any record or process in the superior courts of justice in Westminster hall, by reason whereof the judgment shall be reversed or not take effect, it shall be felony not only in the principal actors, but also in their procurers and abettors.1 And this may be tried either in the king’s bench or common pleas by a jury de medietate,—half officers of any of the superior courts, and the other half common jurors.2 Likewise, by statute 21 Jac. I. c. 26, to acknowledge any fine, recovery, deed enrolled, statute, recognizance, bail, or judgment, in the name of another person not privy to the same, is felony without benefit of clergy. Which law extends only to proceedings in the courts themselves; but, by statute 4 W. and M. c. 4, to personate any other person (as bail) before any judge of assize or other commissioner authorized to take bail in the country, is also felony.3 For no man’s property would be safe if records might be suppressed or falsified, or persons’ names be falsely usurped in courts or before their public officers.

2. To prevent abuses by the extensive power which the law is obliged to repose in gaolers, it is enacted, by statute 14 Edw. III. c. 10, that if any gaoler by too great duress of imprisonment makes any prisoner that he hath in ward **129]become an approver or an appellor against his will; that is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the gaoler.4 For, as Sir Edward Coke observes,(a) it is not lawful to induce or excite any man even to a just accusation of another, much less to do it by duress of imprisonment; and least of all by a gaoler, to whom the prisoner is committed for safe custody.

3. A third offence against public justice is, obstructing the execution of lawful process. This is at all times an offence of a very high and presumptuous nature; but more particularly so when it is an obstruction of an arrest upon criminal process. And it hath been holden that the party opposing such arrest becomes thereby particeps criminis; that is, an accessory in felony, and a principal in high treason.(b)5 Formerly, one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places where indigent persons assembled together to shelter themselves from justice, (especially in London and Southwark,) under the pretext of their having been antient palaces of the crown, or the like:(c) all of which sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal, by the statutes 8 & 9 W. III. c. 27, 9 Geo. I. c. 28, and 11 Geo. I. c. 22, which enact that persons opposing the execution of any process in such pretended privileged places within the bills of mortality, or abusing any officer in his endeavours to execute his duty therein, so that he receives bodily hurt, shall be guilty of felony, and transported for seven years; and persons in disguise, joining in or abetting any riot or tumult on such account, or opposing any process, or assaulting and abusing any officer executing or for having executed the same, shall be felons without benefit of clergy.6

4. An escape of a person arrested upon criminal process by eluding the vigilance of his keepers before he is put in hold is also an offence against public justice, and the party himself *[*130is punishable by fine or imprisonment.(d) But the officer permitting such escape, either by negligence or connivance, is much more culpable than the prisoner; the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody till cleared by the due course of justice. Officers therefore who, after arrest, negligently permit a felon to escape, are also punishable by fine:(e) but voluntary escapes, by consent and connivance of the officer, are a much more serious offence; for it is generally agreed that such escapes amount to the same kind of offence, and are punishable in the same degree, as the offence of which the prisoner is guilty and for which he is in custody, whether treason, felony, or trespass. And this, whether he were actually committed to gaol or only under a bare arrest.(f) But the officer cannot be thus punished till the original delinquent hath actually received judgment or been attainted, upon verdict, confession, or outlawry, of the crime for which he was so committed or arrested; otherwise it might happen that the officer might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemeanour.(g)7

5. Breach of prison by the offender himself, when committed for any cause, was felony at the common law;(h) or even conspiring to break it.(i) But this severity is mitigated by the statute de frangentibus prisonam, 1 Edw. II., which enacts that no person shall have judgment of life or member for breaking prison, unless committed for some capital offence. So that to break prison and escape, when lawfully committed for any treason or felony, remains still felony, as at the common law; and to break prison, (whether it be the county-gaol, the stocks, or other usual place of security,) when lawfully confined upon any other inferior charge, is still **131]punishable as a high misdemeanour by fine and imprisonment. For the statute which ordains that such offence shall be no longer capital never meant to exempt it entirely from every degree of punishment.(j)8

6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offence in the stranger so rescuing as it would have been in a gaoler to have voluntarily permitted an escape. A rescue, therefore, of one apprehended for felony is felony; for treason, treason; and for a misdemeanour, a misdemeanour also. But here likewise, as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished, and for the same reason; because, perhaps, in fact it may turn out that there has been no offence committed.(k)9 By statute 11 Geo. II. c. 26, and 24 Geo. II. c. 40, if five or more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II. c. 31, to convey to any prisoner in custody for treason or felony any arms, instruments of escape or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years; or if the prisoner be in custody for petit larceny or other inferior offence, or charged with a debt of 100l., it is then a misdemeanour, punishable with fine and imprisonment.10 And, by several special statutes,(l) to rescue, or attempt to rescue, any person committed for the offences enumerated in those acts, is felony without benefit of clergy; and to rescue, or attempt to rescue, the body of a felon executed for murder, is single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of the offences against the black-act, 9 Geo. I. c. 22, and being required, by order of the privy council, to surrender himself, neglects so to do for forty days, both he and all that knowingly conceal, aid, abet, or succour him, are felons without benefit of clergy.11

*[*1327. Another capital offence against public justice is the returning from transportation, or being seen at large in Great Britain before the expiration of the term for which the offender was ordered to be transported, or had agreed to transport himself. This is made felony without benefit of clergy in all cases, by statutes 4 Geo. I. c. 11, 6 Geo. I. c. 23, 16 Geo. II. c. 15, and 8 Geo. III. c. 15, as is also the assisting them to escape from such as are conveying them to the port of transportation.12

8. An eighth is that of taking a reward under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villainy in the beginning of the reign of George the First; the confederates of the felons thus disposing of stolen goods, at a cheap rate, to the owners themselves, and thereby stifling all further inquiry. The famous Jonathan Wild had under him a well-disciplined corps of thieves, who brought in all their spoils to him, and he kept a sort of public office for restoring them to the owners at half-price. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted, by statute 4 Geo. I. c. 11, that whoever shall take a reward under the pretence of helping any one to stolen goods shall suffer as the felon who stole them, unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against them. Wild, still continuing in his old practice, was upon this statute at last convicted and executed.(m)13

9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanour and affront to public justice. We have seen in a former chapter(n) that this offence, which is only a misdemeanour at common law, by the statute 3 & 4 W. and M. c. 9, and 5 Anne, c. 31, makes the offender accessory to the theft and felony. But because the accessory cannot in general be tried, unless with the principal or after the principal is convicted, the receivers by that means frequently eluded justice. To remedy which, it is enacted, by statute 1 Anne, c. 9, and 5 Anne, c. 31, that such receivers may still be prosecuted for a misdemeanour, and punished by fine and imprisonment, **133]though the principal felon be not before taken, so as to be prosecuted and convicted. And, in case of receiving stolen lead, iron, and certain other metals, such offence is, by statute 29 Geo. II. c. 30, punishable by transportation for fourteen years.(o) So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemeanour immediately, before the thief is taken,(p) or to wait till the felon is convicted, and then punish them as accessories to the felony. But it is provided, by the same statutes, that he shall only make use of one, and not both, of these methods of punishment. By the same statute, also, 29 Geo. II. c. 30, persons having lead, iron, and other metals in their custody, and not giving a satisfactory account how they came by the same, are guilty of a misdemeanour, and punishable by fine or imprisonment. And, by statute 10 Geo. III. c. 48, all knowing receivers of stolen plate or jewels, taken by robbery on the highway, or when a burglary accompanies the stealing, may be tried as well before as after the conviction of the principal, and whether he be in or out of custody, and, if convicted, shall be adjudged guilty of felony, and transported for fourteen years.14

10. Of a nature somewhat similar to the two last is the offence of theft bote, which is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. *[*134This is frequently called compounding of felony, and formerly was held to make a man an accessory; but it is now punished only with fine and imprisonment.(q) This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law, “latroni eum similem habuit, qui furtum celare vellet, et occulte sine judice compositionem ejus admittere.”(r) By statute 25 Geo. II. c. 36, even to advertise a reward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser and the printer to a forfeiture of 50l. each.

11. Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty’s subjects, either at law or otherwise.(s)15 The punishment for this offence in a common person is by fine and imprisonment; but if the offender (as is too frequently the case) belongs to the profession of the law, a barretor who is thus able as well as willing to do mischief ought also to be disabled from practising for the future.(t) And indeed it is enacted, by statute 12 Geo. I. c. 29, that if any one who hath been convicted of forgery, perjury, subornation of perjury, or common barretry, shall practise as an attorney, solicitor, or agent, in any suit, the court, upon complaint, shall examine it in a summary way, and, if proved, shall direct the offender to be transported for seven years. Hereunto may also be referred another offence of equal malignity and audaciousness, that of sueing another in the name of a fictitious plaintiff; either one not in being at all, or one who is ignorant of the suit. This offence, if committed in any of the king’s superior courts, is left, as a high contempt, to be punished at their discretion. But in courts of a lower degree, where the crime is equally pernicious but the authority of the judges not equally extensive, it is directed, by statute 8 Eliz. c. 2, to be punished by six months’ imprisonment, and treble damages to the party injured.

12. Maintenance is an offence that bears a near relation to the former, being an officious intermeddling in a suit that *[*135no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it;(u) a practice that was greatly encouraged by the first introduction of uses.(w) This is an offence against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression. And therefore, by the Roman law, it was a species of the crimen falsi to enter into any confederacy, or do any act, to support another’s lawsuit, by money, witnesses, or patronage.(x) A man may, however, maintain the suit of his near kinsman, servant, or poor neighbour, out of charity and compassion, with impunity. Otherwise, the punishment by common law is fine and imprisonment,(y) and, by the statute 32 Hen. VIII. c. 9, a forfeiture of ten pounds.

13. Champerty, campi-partitio, is a species of maintenance, and punished in the same manner;(z) being a bargain with a plaintiff or defendant, campum partire, to divide the land or other matter sued for between them, if they prevail at law: whereupon the champertor is to carry on the party’s suit at his own expense.(a) Thus, champart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. In our sense of the word it signifies the purchasing of a suit or right of sueing;16 a practice so much abhorred by our law, that it is one main reason why a chose in action, or thing of which one hath the right but not the possession, is not assignable at common law; because no man should purchase any pretence to sue in another’s right.17 These pests of civil society, that are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men’s quarrels, even at the hazard of their own fortunes, were severely animadverted on by the Roman law, “qui improbe coeunt in alienam litem, ut quicquid ex condemnatione in rem ipsius redactum fuerit inter eos communicaretur, lege Julia de vi privata tenentur;”(b) and they were punished by the forfeiture of a third part of their goods, and perpetual **136]infamy. Hitherto also must be referred the provision of the statute 32 Hen. VIII. c. 9, that no one shall sell or purchase any pretended right or title to land, unless the vendor hath received the profits thereof for one whole year before such grant, or hath been in actual possession of the land, or of the reversion or remainder, on pain that both purchaser and vendor shall each forfeit the value of such land to the king and the prosecutor. These offences relate chiefly to the commencement of civil suits: but

14. The compounding of informations upon penal statutes is an offence of an equivalent nature in criminal causes, and is, besides, an additional misdemeanour against public justice, by contributing to make the laws odious to the people. At once, therefore, to discourage malicious informers, and to provide that offences, when once discovered, shall be duly prosecuted, it is enacted, by statute 18 Eliz. c. 5, that if any person, informing under pretence of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him, (which demonstrates his intent in commencing the prosecution to be merely to serve his own ends, and not for the public good,) he shall forfeit 10l., shall stand two hours on the pillory, and shall be forever disabled to sue on any popular or penal statute.18

15. A conspiracy also to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a further abuse and perversion of public justice,19 for which the party injured may either have a civil action by writ of conspiracy, (of which we spoke in the preceding book,)(c) or the conspirators, for there must be at least two to form a conspiracy, may be indicted at the suit of the king, and were by the antient common law(d) to receive what is called the villenous judgment, viz., to lose their liberam legem, whereby they are discredited and disabled as jurors or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses razed, their trees rooted up, and their own bodies committed to prison.(e) But it now is the better opinion, that the villenous judgment is by long **137]disuse become obsolete, it not having been pronounced for some ages; but instead thereof, the delinquents are usually sentenced to imprisonment, fine, and pillory. To this head may be referred the offence of sending letters threatening to accuse any person of a crime punishable with death, transportation, pillory, or other infamous punishment, with a view to extort from him any money or other valuable chattels. This is punishable, by statute 30 Geo. II. c. 24, at the discretion of the court, with fine, imprisonment, pillory, whipping, or transportation for seven years.20

16. The next offence against public justice is when the suit is past its commencement, and come to trial. And that is, the crime of wilful and corrupt perjury: which is defined by Sir Edward Coke(f) to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely in a matter material to the issue or point in question. The law takes no notice of any perjury but such as is committed in some court of justice having power to administer an oath; or before some magistrate or proper officer invested with a similar authority, in some proceedings relative to a civil suit or a criminal prosecution: for it esteems all other oaths unnecessary, at least, and therefore will not punish the breach of them.21 For which reason it is much to be questioned, how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion; since it is more than possible that by such idle oaths a man may frequently in foro conscientiæ incur the guilt and at the same time evade the temporal penalties of perjury. The perjury must also be corrupt, (that is, committed malo animo,) wilful, positive, and absolute:22 not upon surprise, or the like: it also must be in some point material to the question in dispute;23 for if it only be in some trifling collateral circumstance, to which no regard is paid, it is no more penal than in the voluntary extrajudicial oaths before mentioned. Subornation of perjury is the offence of procuring another to *[*138take such a false oath as constitutes perjury in the principal.24 The punishment of perjury and subornation at common law has been various. It was antiently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods; and now it is fine and imprisonment and never more to be capable of bearing testimony.(g) But the statute 5 Eliz. c. 9 (if the offender be prosecuted thereon) inflicts the penalty of perpetual infamy, and a fine of 40l. on the suborner: and, in default of payment, imprisonment for six months, and to stand with both ears nailed to the pillory. Perjury itself is thereby punished with six months’ imprisonment, perpetual infamy, and a fine of 20l., or to have both ears nailed to the pillory. But the prosecution is usually carried on for the offence at common law; especially as to the penalties before inflicted, the statute 2 Geo. II. c. 25 superadds a power for the court to order the offender to be sent to the house of correction for a term not exceeding seven years, or to be transported for the same period, and makes it felony without benefit of clergy to return or escape within the time.25 It has sometimes been wished that perjury, at least upon capital accusations whereby another’s life has been or might have been destroyed, was also rendered capital, upon a principle of retaliation: as it is in all cases by the laws of France.(h) And certainly the odiousness of the crime pleads strongly in behalf of the French law. But it is to be considered, that they admit witnesses to be heard only on the side of the prosecution, and use the rack to extort a confession from the accused. In such a constitution therefore, it is necessary to throw the dread of capital punishment into the other scale in order to keep in awe the witnesses for the crown, on whom alone the prisoner’s fate depends; so naturally does one cruel law beget another. But corporal and pecuniary punishments, exile and perpetual infamy, are more suited to the genius of the English law; where the fact is openly discussed between witnesses on both sides, and the evidence for the crown may be contradicted and disproved by those of the prisoner. Where, **139]indeed, the death of an innocent person has actually been the consequence of such wilful perjury, it falls within the guilt of deliberate murder, and deserves an equal punishment; which our antient law in fact inflicted.(i) But the mere attempt to destroy life by other means not being capital, there is no reason that an attempt by perjury should; much less that this crime should in all judicial cases be punished with death. For to multiply capital punishments lessens their effect when applied to crimes of the deepest dye; and, detestable as perjury is, it is not by any means to be compared with some other offences, for which only death can be inflicted; and therefore it seems already (except perhaps in the instance of deliberate murder by perjury) very properly punished by our present law, which has adopted the opinion of Cicero,(k) derived from the law of the twelve tables, “perjurii pœna divina, exitium; humana, dedecus.”

17. Bribery is the next species of offence against public justice; which is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in his office.(l)26 In the East it is the custom never to petition any superior for justice, not excepting their kings, without a present. This is calculated for the genius of despotic countries; where the true principles of government are never understood, and it is imagined that there is no obligation from the superior to the inferior, no relative duty owing from the governor to the governed. The Roman law, though it contained many severe injunctions against bribery, as well for selling a man’s vote in the senate or other public assembly, as for the bartering of common justice, yet by a strange indulgence in one instance it tacitly encouraged this practice: allowing the magistrate to receive small presents, provided they did not in the whole exceed a hundred crowns in the year:(m) not considering the insinuating nature and gigantic progress of this vice when once admitted. Plato, therefore, more wisely, in his ideal republic,(n) *[*140orders those who take presents for doing their duty to be punished in the severest manner: and by the laws of Athens he that offered was also prosecuted as well as he that received a bribe.(o) In England this offence of taking bribes is punished in inferior officers with fine and imprisonment; and in those who offer a bribe, though not taken, the same.(p) But in judges, especially the superior ones, it hath been always looked upon as so hemous an offence that the chief justice Thorpe was hanged for it in the reign of Edw. III. By a statute(q) 11 Hen. IV., all judges and officers of the king, convicted of bribery, shall forfeit treble the bribe, be punished at the king’s will, and be discharged from the king’s service forever. And some notable examples have been made in parliament of persons in the highest stations, and otherwise very eminent and able, contaminated with this sordid vice.

18. Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like.(r) The punishment for the person embracing is by fine and imprisonment; and for the juror so embraced, if it be by taking money, the punishment is (by divers statutes of the reign of Edward III.) perpetual infamy, imprisonment for a year, and forfeiture of the tenfold value.27

19. The false verdict of jurors, whether occasioned by embracery or not, was antiently considered as criminal, and therefore exemplarily punished by attaint, in the manner formerly mentioned.(s)28

20. Another offence of the same species is the negligence of public officers, in trusted with the administration of justice, as sheriffs, coroners, constables, and the like, which makes the offender liable to be fined; and in very notorious cases will amount to a forfeiture of his office, if it be a beneficial one.(t) Also, the omitting to apprehend persons offering stolen *[*141iron, lead, and other metals to sale is a misdemeanour, and punishable by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II. c. 30.

21. There is yet another offence against public justice, which is a crime of deep malignity; and so much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution. This is the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office. However, when prosecuted, either by impeachment in parliament, or by information in the court of king’s bench, (according to the rank of the offenders,) it is sure to be severely punished with forfeiture of their offices, (either consequential or immediate,) fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed.29

22. Lastly, extortion is an abuse of public justice, which consists in any officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value that is not due to him, or more than is due, or before it is due.(u) The punishment is fine and imprisonment, and sometimes a forfeiture of the office.30

CHAPTER XI.

OF OFFENCES AGAINST THE PUBLIC PEACE.

**142]We are next to consider offences against the public peace; the conservation of which is intrusted to the king and his officers, in the manner and for the reasons which were formerly mentioned at large.(a) These offences are either such as are an actual breach of the peace; or constructively so, by tending to make others break it. Both of these species are also either felonious, or not felonious. The felonious breaches of the peace are strained up to that degree of malignity by virtue of several modern statutes; and particularly,—

1. The riotous assembling of twelve1 persons or more, and not dispersing upon proclamation. This was first made high treason by statute 3 & 4 Edw. VI. c. 5, when the king was a minor, and a change in religion to be effected; but that statute was repealed by statute 1 Mar. c. 1, among the other treasons created since the 25 Edw. III.; though the prohibition was in substance reenacted, with an inferior degree of punishment, by statute 1 Mar. st. 2, c. 12, which made the same offence a single felony. These statutes specified and particularized the name of the riots they were meant to suppress; as, for example, such as were set on foot with intention to offer violence to the privy council, or to change the laws of the kingdom, or for certain other specific purposes: in which cases, if the persons were commanded by proclamation to disperse, and they did not, it was by the statute of Mary made felony, but within the benefit of the clergy; and also the act indemnified the peace-officers and their assistants if they killed any of the mob in endeavouring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established *[*143which was likely to produce great discontents; but at first it was made only for a year, and was afterwards continued for that queen’s life. And, by statute 1 Eliz. c. 16, when a reformation in religion was to be once more attempted, it was revived and continued during her life also, and then expired. From the accession of James the First to the death of queen Anne, it was never once thought expedient to revive it; but in the first year of George the First it was judged necessary, in order to support the execution of the act of settlement, to renew it, and at one stroke to make it perpetual, with large additions. For, whereas the former acts expressly defined and specified what should be accounted a riot, the statute I Geo. I. c. 5 enacts, generally, that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under-sheriff, or mayor of a town shall think proper to command them by proclamation to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony without benefit of clergy.2 And further, if the reading of the proclamation be by force opposed, or the reader be in any manner wilfully hindered from the reading of it, such opposers and hinderers are felons without benefit of clergy; and all persons to whom such proclamation ought to have been made, and knowing of such hinderance, and not dispersing, are felons without benefit of clergy. There is the like indemnifying clause in case any of the mob be unfortunately killed in the endeavour to disperse them; being copied from the act of queen Mary. And, by a subsequent clause of the new act, if any persons so riotously assembled begin, even before proclamation, to pull down any church, chapel, meeting-house, dwelling-house, or out-houses, they shall be felons without benefit of clergy.3

2. By statute 1 Hen. VII. c. 7, unlawful hunting in any legal forest, park, or warren, not being the king’s property, by night, or with painted faces, was declared to be single felony. But now, by the statute 9 Geo. I. c. 22, to appear armed in any enclosed forest or place where deer are usually kept, or in any warren for hares or coneys, or in any high*[*144road, open heath, common, or down, by day or night, with faces blacked or otherwise disguised, or (being so disguised) to hunt, wound, kill, or steal any deer, to rob a warren, or to steal fish, or to procure by gift or promise of reward any person to join them in such unlawful act, is felony without benefit of clergy.4 I mention these offences in this place not on account of the damage thereby done to private property, but of the manner in which that damage is committed, namely, with the face blacked or with other disguise, and being armed with offensive weapons, to the breach of the public peace and the terror of his majesty’s subjects.

3. Also, by the same statute, 9 Geo. I. c. 22, amended by statute 27 Geo. II. c. 15, knowingly to send any letter without a name, or with a fictious name, demanding money, venison, or any other valuable thing, or threatening (without any demand) to kill any of the king’s subjects, or to fire their houses, out-houses, barns, or ricks, is made felony without benefit of clergy.5 This offence was formerly high treason, by the statute 8 Hen. V. c. 6.

4. To pull down or destroy any lock, sluice, or floodgate erected by authority of parliament on a navigable river is, by statute 1 Geo. II. st. 2, c. 19, made felony, punishable with transportation for seven years. By the statute 8 Geo. II. c. 20, the offence of destroying such works, or rescuing any person in custody for the same, is made felony without benefit of clergy; and it may be inquired of and tried in any adjacent county, as if the fact had been therein committed. By the statute 4 Geo. III. c. 12, maliciously to damage or destroy any banks, sluices, or other works on such navigable river, to open the floodgates or otherwise obstruct the navigation, is again made felony, punishable with transportation for seven years. And, by the statute 7 Geo. III. c. 40, (which repeals all former acts relating to turnpikes,) maliciously to pun down or otherwise destroy any turnpike-gate or fence, toll-house or **145]weighing-engine thereunto belonging, erected by authority of parliament, or to rescue any person in custody for the same, is made felony without benefit of clergy, and the indictment may be inquired of and tried in any adjacent county.6 The remaining offences against the public peace are merely misdemeanours, and no felonies; as,—

5. Affrays (from affraier, to terrify) are the fighting of two or more persons in some public place, to the terror of his majesty’s subjects; for if the fighting be in private it is no affray, but an assault.(b) Affrays may be suppressed by any private person present, who is justifiable in endeavouring to part the combatants, whatever consequence may ensue.(c) But more especially the constable, or other similar officer, however denominated, is bound to keep the peace, and to that purpose may break open doors to suppress an affray or apprehend the affrayers, and may either carry them before a justice or imprison them by his own authority for a convenient space, till the heat is over, and may then perhaps also make them find sureties for the peace.(d) The punishment of common affrays is by fine and imprisonment, the measure of which must be regulated by the circumstances of the case; for, where there is any material aggravation, the punishment proportionably increases. As where two persons coolly and deliberately engage in a duel: this, being attended with an apparent intention and danger of murder, and being a high contempt of the justice of the nation, is a strong aggravation of the affray, though no mischief has actually ensued.(e) *[*146Another aggravation is when, thereby, the officers of justice are disturbed in the due execution of their office, or where a respect to the particular place ought to restrain and regulate men’s behaviour more than in common ones; as in the king’s court, and the like. And upon the same account, also, all affrays in a church or churchyard are esteemed very heinous offences, as being indignities to Him to whose service those places are consecrated. Therefore mere quarrelsome words, which are neither an affray nor an offence in any other place, are penal here. For it is enacted, by statute 5 & 6 Edw. VI. c. 4, that if any person shall, by words only, quarrel, chide, or brawl in a church or churchyard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiæ, and if a clerk in orders, from the ministration of his office during pleasure. And if any person in such church or churchyard proceeds to smite or lay violent hands upon another, he shall be excommunicated ipso facto; or if he strikes him with a weapon, or draws any weapon with intent to strike, he shall, besides excommunication, (being convicted by a jury,) have one of his ears cut off, or, having no ears, be branded with the letter F. in his cheek.7Two persons may be guilty of an affray: but,—

6. Riots, routs, and unlawful assemblies must have three persons at least to constitute them. An unlawful assembly is when three or more do assemble themselves together to do an unlawful act, as to pull down enclosures, to destroy a warren or the game therein, and part without doing it or making any motion towards it.(f)8 A rout is where three or more meet to do an unlawful act upon a common quarrel, as forcibly breaking down fences upon a right claimed of common or of way, and make some advances towards it.(g) A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel;(h) as, if they beat a man, or hunt and kill game in another’s park, chase, warren, or liberty, or do any other unlawful act with force and violence, or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner.9 **147]The punishment of unlawful assemblies, if to the number of twelve, we have just now seen, may be capital, according to the circumstances that attend it; but from the number of three to eleven is by fine and imprisonment only.10 The same is the case in riots and routs by the common law; to which the pillory, in very enormous cases, has been sometimes superadded.(i)11 And, by the statute 13 Hen. IV. c. 7, any two justices, together with the sheriff or under-sheriff of the county, may come with the posse comitatus, if need be, and suppress any such riot, assembly, or rout, arrest the rioters, and record upon the spot the nature and circumstances of the whole transaction, which record alone shall be a sufficient conviction of the offenders. In the interpretation of which statute it hath been holden that all persons, noblemen and others, except women, clergymen, persons decrepit, and infants under fifteen, are bound to attend the justices in suppressing a riot, upon pain of fine and imprisonment; and that any battery, wounding, or killing the rioters that may happen in suppressing the riot is justifiable.(j) So that our antient law, previous to the modern riot act, seems pretty well to have guarded against any violent breach of the public peace, especially as any riotous assembly on a public or general account, as, to redress grievances or pull down all enclosures, and also resisting the king’s forces if sent to keep the peace, may amount to overt acts of high treason by levying war against the king.

7. Nearly related to this head of riots is the offence of tumultuous petitioning, which was carried to an enormous height in the times preceding the grand rebellion. Wherefore, by statute 13 Car. II. st. 1, c. 5, it is enacted that not more than twenty names shall be signed to any petition to the king or either house of parliament for any alteration of matters established by law in church or state, unless the contents thereof be previously approved in the country by three justices, or the majority of the grand jury at the assizes or quarter sessions, and in London by the lord mayor, aldermen, **148]and common council;(k) and that no petition shall be delivered by a company of more than ten persons, on pain in either case of incurring a penalty not exceeding 100l. and three months’ imprisonment.12

8. An eighth offence against the public peace is that of a forcible entry or detainer, which is committed by violently taking or keeping possession of lands and tenements with menaces, force, and arms, and without the authority of law. This was formerly allowable to every person disseised, or turned out of possession, unless his entry was taken away or barred by his own neglect, or other circumstances, which were explained more at large in a former book.(l) But, this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice, and much more if they have no justice in their claim.(m) So that the entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained with force, with violence and unusual weapons. By the statute 5 Ric. II. st. 1, c. 8, all forcible entries are punished with imprisonment and ransom at the king’s will. And, by the several statutes of 15 Ric. II. c. 2, 8 Hen. VI. c. 9, 31 Eliz. c. 11, and 21 Jac. I. c. 15, upon any forcible entry, or forcible detainer after peaceable entry, into any lands or benefices of the church, one or more justices of the peace, taking sufficient power of the county, may go to the place, and there record the force upon his own view, as in case of riots, and upon such conviction may commit the offender to gaol till he makes fine and ransom to the king. And moreover the justice or justices have power to summon a jury to try the forcible entry or detainer complained of; and, if the same be found by that jury, then, besides the fine on the offender, the justices shall make restitution by the sheriff of the possession, without inquiring into the merits of the title, for the force is the only thing to be tried, punished, and remedied by them: and the same may be done by indictment at the general sessions. But this provision does not extend to such as endeavour to maintain possession by force where they *[*149themselves, or their ancestors, have been in the peaceable enjoyment of the lands and tenements for three years immediately preceding.(n)

9. The offence of riding or going armed with dangerous or unusual weapons is a crime against the public peace, by terrifying the good people of the land, and is particularly prohibited by the statute of Northampton, 2 Edw. III. c. 3, upon pain of forfeiture of the arms and imprisonment during the king’s pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armour.(o)

10. Spreading false news, to make discord between the king and nobility, or concerning any great man of the realm, is punishable by common law(p) with fine and imprisonment, which is confirmed by statutes Westm. 1, 3 Edw. I. c. 34, 2 Ric. II. st. 1, c. 5, and 12 Ric. II. c. 11.

11. False and pretended prophecies, with intent to disturb the peace, are equally unlawful, and more penal, as they raise enthusiastic jealousies in the people and terrify them with imaginary fears. They are therefore punished by our law upon the same principle that spreading of public news of any kind, without communicating it first to the magistrate, was prohibited by the antient Gauls.(q) Such false and pretended prophecies were punished capitally by statute 1 Edw. VI. c. 12, which was repealed in the reign of queen Mary. And now, by the statute 5 Eliz. c. 15, the penalty for the first offence is a fine of ten pounds and one year’s imprisonment; for the second, forfeiture of all goods and chattels and imprisonment during life.

**150]12. Besides actual breaches of the peace, any thing that tends to provoke or excite others to break it is an offence of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offence.(r)13 If this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender, by statute 9 Anne, c. 14, shall forfeit all his goods to the crown and suffer two years’ imprisonment.

13. Of a nature very similar to challenges are libels, libelli famosi, which, taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath or expose him to public hatred, contempt, and ridicule.(s) The direct tendency of these libels is the breach of the public peace by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law;(t) and therefore the sending an abusive letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace.(u) For the same reason, it is immaterial, with respect to the essence of a libel, whether the matter of it be true or false,(v) since the provocation, and not the falsity, is the thing to be punished criminally; though, doubtless, the falsehood of it may aggravate its guilt and enhance its punishment.14 In a civil action, we may remember, a libel must appear to be false as well as scandalous;(w) for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever **151]offence it may be against the public peace; and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities and to disturb the public peace is the whole that the law considers. And, therefore, in such prosecutions the only points to be inquired into are, first, the making or publishing of the book or writing, and secondly, whether the matter be criminal; and if both these points are against the defendant, the offence against the public is complete.15 The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine and such corporal punishment as the court in its discretion shall inflict, regarding the quantity of the offence and the quality of the offender.(x)16 By the law of the twelve tables at Rome, libels which affected the reputation of another were made a capital offence; but before the reign of Augustus the punishment became corporal only.(y) Under the emperor Valentinian(z) it was again made capital, not only to write, but to publish, or even to omit destroying them. Our law in this and many other respects corresponds rather with the middle age of Roman jurisprudence, when liberty, learning, and humanity were in their full vigour, than with the cruel edicts that were established in the dark and tyrannical ages of the antient decemviri or the later emperors.

In this and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less, degree of severity, the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and **152]not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press, but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution,(a) is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a *[*153fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly vend them as cordials. And to this we may add that the only plausible argument heretofore used for the restraining the just freedom of the press, “that it was necessary, to prevent the daily abuse of it,” will entirely lose its force when it is shown (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose without incurring a suitable punishment; whereas it never can be used to any good one when under the control of an inspector. So true it will be found that to censure the licentiousness is to maintain the liberty of the press.

CHAPTER XII.

OF OFFENCES AGAINST PUBLIC TRADE.

*[*154Offences against public trade, like those of the preceding classes, are either felonious or not felonious. Of the first sort are,—

1. Owling; so called from its being usually carried on in the night, which is the offence of transporting wool or sheep out of this kingdom, to the detriment of its staple manufacture. This was forbidden at common law,(a) and more particularly by statute 11 Edw. III. c. 1, when the importance of our woollen manufacture was first attended to; and there are now many later statutes relating to this offence, the most useful and principal of which are those enacted in the reign of queen Elizabeth and since. The statute 8 Eliz. c. 3 makes the transportation of live sheep, or embarking them on board any ship, for the first offence forfeiture of goods and imprisonment for a year, and that at the end of the year the left hand shall be cut off in some public market, and shall be there nailed up in the openest place; and the second offence is felony. The statutes 12 Car. II. c. 32, 7 & 8 W. III. c. 28, make the exportation of wool, sheep, or fullers’ earth liable to pecuniary penalties, and the forfeiture of the interest of the ship and cargo by the owners, if privy, and confiscation of goods, and three years’ imprisonment to the master and all the mariners. And the statute 4 Geo. I. c. 11 (emended and further enforced by 12 Geo. II. c. 21, and 19 Geo. II. c. 34) makes it transportation for seven years, if the penalties be not paid.1

2. Smuggling, or the offence of importing goods without paying the duties imposed thereon by the laws of the customs and *[*155excise, is an offence generally connected and carried on hand in hand with the former. This is restrained by a great variety of statutes, which inflict pecuniary penalties and seizure of the goods for clandestine smuggling, and affix the guilt of felony, with transportation for seven years, upon more open, daring, and avowed practices:2 but the last of them, 19 Geo. II. c. 34, is for the purpose instar omnium; for it makes all forcible acts of smuggling, carried on in defiance of the laws, or even in disguise to evade them, felony without benefit of clergy: enacting, that if three or more persons shall assemble, with fire-arms or other offensive weapons, to assist in the illegal exportation or importation of goods, or in rescuing the same after seizure, or in rescuing offenders in custody for such offences; or shall pass with such goods in disguise; or shall wound, shoot at, or assault any officers of the revenue when in the execution of their duty; such persons shall be felons without the benefit of clergy. As to that branch of the statute which required any person charged upon oath as a smuggler, under pain of death, to surrender himself upon proclamation, it seems to be expired; as the subsequent statutes,(b) which continue the original act to the present time, do in terms continue only so much of the said act as relates to the punishment of the offenders, and not to the extraordinary method of apprehending or causing them to surrender: and for offences of this positive species, where punishment (though necessary) is rendered so by the laws themselves, which by imposing high duties on commodities increase the temptation to evade them, we cannot surely be too cautious in inflicting the penalty of death.(c)3

**156]3. Another offence against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume:(d) I shall therefore now barely mention the several species of fraud taken notice of by the statute law, viz., the bankrupt’s neglect of surrendering himself to his creditors; his non conformity to the directions of the several statutes; his concealing or embezzling his effects to the value of 20l.; and his withholding any books or writings with intent to defraud his creditors: all which the policy of our commercial country has made felony without benefit of clergy.(e)4 And indeed it is allowed by such as are the most averse to the infliction of capital punishment, that the offence of fraudulent bankruptcy, being an atrocious species of the crimen falsi, ought to be put upon a level with those of forgery and falsifying the coin.(f) And, even without actual fraud, if the bankrupt cannot make it appear that he is disabled from paying his debts by some casual loss, he shall, by the statute 21 Jac. I. c. 19, be set on the pillory for two hours, with one of his ears nailed to the same and cut off. To this head we may also subjoin that, by statute 32 Geo. II. c. 28, it is felony, punishable by transportation for seven years, if a prisoner, charged in execution for any debt under 100l., neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors. And these are the only felonious offences against public trade, the residue being mere misdemeanours: as,—

4. Usury; which is an unlawful contract, upon the loan of money, to receive the same again with exorbitant increase. Of this also we had occasion to discourse at large in a former volume.(g) We there observed that, by statute 37 Hen. VIII. c. 9, the rate of interest was fixed at 10l. per cent. per annum, which the statute 13 Eliz. c. 8 confirms; and ordains that all brokers shall be guilty of a præmunire that transact any contracts for more, and the securities themselves shall be *[*157void. The statute 21 Jac. I. c. 17 reduced interest to eight per cent.; and, it having been lowered in 1650, during the usurpation, to six per cent., the same reduction was re-enacted after the restoration by statute 12 Car. II. c. 13; and, lastly, the statute 12 Anne, st. 2, c. 16 has reduced it to five per cent. Wherefore not only all contracts for taking more are in themselves totally void, but also the lender shall forfeit treble the money borrowed.5 Also, if any scrivener or broker takes more than five shillings per cent. procuration-money, or more than twelve pence for making a bond, he shall forfeit 20l. with costs, and shall suffer imprisonment for half a year. And, by statute 17 Geo. III. c. 26, to take more than ten shillings per cent. for procuring any money to be advanced on any life-annuity, is made an indictable misdemeanour, and punishable with fine and imprisonment: as is also the offence of procuring or soliciting any infant to grant any life-annuity, or to promise, or otherwise engage, to ratify it when he comes of age.6

5. Cheating is another offence more immediately against public trade; as that cannot be carried on without a punctilious regard to common honesty and faith between man and man. Hither therefore may be referred that prodigious multitude of statutes which are made to restrain and punish deceits in particular trades, and which are enumerated by Hawkins and Burn, but are chiefly of use among the traders themselves. The offence also of breaking the assize of bread, or the rules laid down by the law, and particularly by the statutes 31 Geo. II. c. 29, 3 Geo. III. c. 11, and 13 Geo. III. c. 62, for ascertaining its price in every given quantity, is reducible to this head of cheating: as is likewise, in a peculiar manner, the offence of selling by false weights and measures; the standard of which fell under our consideration in a former volume.(h)7 The punishment of bakers breaking the assize was, antiently, to stand in the pillory, by statute 51 Hen. III. st. 6, and for brewers (by the same act) to stand in the tumbrel or dung-cart:(i) which, as we learn from domesday-book, was the punishment for knavish brewers in the city of Chester so early as the reign of Edward the Confessor. “Malam cervisiam faciens, in cathedra ponebatur stercoris.”(j) But now the general punishment for all frauds *[*158of this kind, if indicted (as they may be) at common law, is by fine and imprisonment: though the easier and more usual way is by levying on a summary conviction, by distress and sale, the forfeitures imposed by the several acts of parliament. Lastly, any deceitful practice, in cozening another by artful means, whether in matters of trade or otherwise, as by playing with false dice, or the like, is punishable with fine, imprisonment, and pillory.(k)8 And, by the statutes 33 Hen. VIII. c. 1, and 30 Geo. II. c. 24, if any man defrauds another of any valuable chattels by colour of any false token, counterfeit letter, or false pretence, or pawns or disposes of another’s goods without the consent of the owner, he shall suffer such punishment, by imprisonment, fine, pillory, transportation, whipping, or other corporal pain, as the court shall direct.9

6. The offence of forestalling the market is also an offence against public trade. This, which (as well as the two following) is also an offence at common law,(l) was described by statute 5 & 6 Edward VI. c. 14 to be the buying or contracting for any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price when there: any of which practices make the market dearer to the fair trader.

7. Regrating was described by the same statute to be the buying of corn or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. For this also enhances the price of the provisions, as every successive seller must have a successive profit.

8. Engrossing was also described to be the getting into one’s possession, or buying up, large quantities of corn or other dead victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion.10 And so the total engrossing of any other commodity, with an intent to sell it at an unreasonable *[*159price, is an offence indictable and finable at the common law.(m) And the general penalty for these three offences by the common law (for all the statutes concerning them were repealed by 12 Geo. III. c. 71) is, as in other minute misdemeanours, discretionary fine and imprisonment.(n) Among the Romans, these offences and other mal-practices to raise the price of provisions were punished by a pecuniary mulct. “Pœna viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coieret quo annona carior fiat.”(o)

9. Monopolies are much the same offence in other branches of trade that engrossing is in provisions: being a license or privilege allowed by the king for the sole buying and selling, making, working, or using of any thing whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before.(p) These had been carried to an enormous height during the reign of queen Elizabeth, and were heavily complained of by Sir Edward Coke,(q) in the beginning of the reign of king James the First; but were in great measure remedied by statute 21 Jac. I. c. 3,11 which declares such monopolies to be contrary to law and void (except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance, and shot;) and monopolists are punished with the forfeiture of treble damages and double costs to those whom they attempt to disturb; and, if they procure any action, brought against them for these damages, to be stayed by any extra-judicial order other than that of the court wherein it is brought, they incur the penalties of præmunire. Combinations also among victuallers or artificers to raise the price of provisions or any commodities, or the rate of labour,12 are in many cases severely punished by particular statutes; and in general, by statute 2 & 3 Edw. VI. c. 15, with the forfeiture of 10l. or twenty days’ imprisonment, with an allowance of only bread and water, for the first offence; 20l. or the pillory for the second; and **160]40l. for the third, or else the pillory, loss of one ear, and perpetual infamy. In the same manner, by a constitution of the emperor Zeno,(r) all monopolies and combinations to keep up the price of merchandise, provisions, or workmanship were prohibited, upon pain of forfeiture of goods and perpetual banishment.

10. To exercise a trade in any town without having previously served as an apprentice for seven years,(s) is looked upon to be detrimental to public trade, upon the supposed want of sufficient skill in the trader; and therefore is punished, by statute 5 Eliz. c. 4, with the forfeiture of forty shillings by the month.13

11. Lastly, to prevent the destruction of our home manufactures by transporting and seducing our artists to settle abroad, it is provided, by statute 5 Geo. I. c. 27, that such as so entice or seduce them shall be fined 100l. and be imprisoned three months; and for the second offence shall be fined at discretion, and be imprisoned a year; and the artificers so going into foreign countries, and not returning within six months after warning given them by the British ambassador where they reside, shall be deemed aliens, and forfeit all their land and goods, and shall be incapable of any legacy or gift. By statute 23 Geo. II. c. 13, the seducers incur, for the first offence, a forfeiture of 500l. for each artificer contracted with to be sent abroad, and imprisonment for twelve months; and for the second, 1000l., and are liable to two years’ imprisonment: and by the same statute, connected with 14 Geo. III. c. 71, if any person exports any tools or utensils used in the silk, linen, cotton, or woollen manufactures, (excepting woolcards to North America,)(t) he forfeits the same and 200l., and the captain of the ship (having knowledge thereof) 100l.; and if any captain of a king’s ship, or officer of the customs, knowingly suffers such exportation, he forfeits 100l. and his employment, and is forever made incapable of bearing any public office: and every person collecting such tools or utensils in order to export the same shall, on conviction at the assizes, forfeit such tools and also 200l.14

CHAPTER XIII.

OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ECONOMY.

*[*161The fourth species of offences more especially affecting the commonwealth are such as are against the public health of the nation; a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed.

1. The first of these offences is a felony, but, by the blessing of Providence, for more than a century past incapable of being committed in this nation: for, by statute 1 Jac. I. c. 31, it is enacted that, if any person infected with the plague, or dwelling in any infected house, be commanded by the mayor or constable, or other head officer, of his town or vill, to keep his house, and shall venture to disobey it, he may be enforced, by the watchmen appointed on such melancholy occasions, to obey such necessary command; and, if any hurt ensue by such enforcement, the watchmen are thereby indemnified. And further, if such person so commanded to confine himself goes abroad and converses in company, if he has no plague-sore upon him, he shall be punished as a vagabond by whipping, and be bound to his good behaviour; but, if he has any infectious sore upon him, uncured, he then shall be guilty of felony. By the statute 26 Geo. II. c. 26, (explained and amended by 29 Geo. II. c. 8,) the method of performing quarantine, or forty days’ probation, by ships coming from infected countries, is put in a much more regular and effectual order than formerly, and masters of ships coming from infected places and disobeying the directions there given, *[*162or having the plague on board and concealing it, are guilty of felony without benefit of clergy. The same penalty also attends persons escaping from the lazarets, or places wherein quarantine is to be performed; and officers and watchmen neglecting their duty; and persons conveying goods or letters from ships performing quarantine.1

2. A second, but much inferior, species of offence against public health is the selling of unwholesome provisions.2 To prevent which, the statute 51 Hen. III. st. 6, and the ordinance for bakers, c. 7, prohibit the sale of corrupted wine, contagious or unwholesome flesh, or flesh that is bought of a Jew, under pain of amercement for the first offence, pillory for the second, fine and imprisonment for the third, and abjuration of the town for the fourth.3 And, by the statute 12 Car. II. c. 25, § 11, any brewing or adulteration of wine is punished with the forfeiture of 100l. if done by the wholesale merchant, and 40l. if done by the vintner or retail trader.4 These are all the offences which may properly be said to respect the public health.

V. The last species of offences which especially affect the commonwealth are those against the public police or economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations. This head of offences must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society and are not comprehended under any of the four preceding species. These amount some of them to felony, and others to misdemeanours only. Among the former are,—

1. The offence of clandestine marriages: for, by the statute 26 Geo. II. c. 33, 1. To solemnize marriage in any other place besides a church or public chapel wherein banns have been usually published, except by license from the archbishop of **163]Canterbury; and, 2. To solemnize marriage in such church or chapel without due publication of banns, or license obtained from a proper authority, do both of them not only render the marriage void, but subject the person solemnizing it to felony, punished by transportation for fourteen years; as, by three former statutes,(a) he and his assistants were subject to a pecuniary forfeiture of 100l. 3. To make a false entry in a marriage-register; to alter it when made; to forge or counterfeit such entry, or a marriage-license; to cause, or procure, or act or assist in such forgery; to utter the same as true, knowing it to be counterfeit; or to destroy or procure the destruction of any register, in order to vacate any marriage or subject any person to the penalties of this act; all these offences, knowingly and wilfully committed, subject the party to the guilt of felony without benefit of clergy.5

2. Another felonious offence with regard to this holy estate of matrimony is what some have corruptly called bigamy, which properly signifies being twice married, but is more justly denominated polygamy, or having a plurality of wives at once.(b) Such second marriage, living the former husband or wife, is simply void, and a mere nullity, by the ecclesiastical law of England; and yet the legislature has thought it just to make it felony, by reason of its being so great a violation of the public economy and decency of a well-ordered state. For polygamy can never be endured under any rational civil establishment, whatever specious reasons may be urged for it by the eastern nations, the fallaciousness of which has been fully proved by many sensible writers: *[*164but in northern countries the very nature of the climate seems to reclaim against it, it never having obtained in this part of the world, even from the time of our German ancestors, who, as Tacitus informs us,(c) “prope soli barbarorum singulis uxoribus contenti sunt.” It is therefore punished by the laws both of antient and modern Sweden with death.(d) And with us in England it is enacted, by statute 1 Jac. I. c. 11, that if any person, being married, do afterwards marry again, the former husband or wife being alive, it is felony, but within the benefit of clergy. The first wife in this case shall not be admitted as a witness against her husband, because she is the true wife; but the second may, for she is indeed no wife at all;(e) and so vice versa of a second husband. This act makes an exception to five cases in which such second marriage, though in the three first it is void, is yet no felony.(f) 1. Where either party hath been continually abroad for seven years, whether the party in England hath notice of the other’s being living or no. 2. Where either of the parties hath been absent from the other seven years within this kingdom, and the remaining party hath had no knowledge of the other’s being alive within that time. 3. Where there is a divorce (or separation a mensa et thoro) by sentence in the ecclesiastical court. 4. Where the first marriage is declared absolutely void by any such sentence, and the parties loosed a vinculo. Or, 5. Where either of the parties was under the age of consent at the time of the first marriage; for in such case the first marriage was voidable by the disagreement of either party, which the second marriage very clearly amounts to. But if at the age of consent the parties had agreed to the marriage, which completes the contract, and is, indeed, the real marriage, and afterwards one of them should marry again, I should apprehend that such second marriage would be within the reason and penalties of the act.6

3. A third species of felony against the good order and **165]economy of the kingdom is by idle soldiers and mariners wandering about the realm, or persons pretending so to be, and abusing the name of that honourable profession.(g) Such a one, not having a testimonial or pass from a justice of the peace limiting the time of his passage, or exceeding the time limited for fourteen days, unless he falls sick, or forging such testimonial, is, by statute 39 Eliz. c. 17, made guilty of felony without benefit of clergy. This sanguinary law, though in practice deservedly antiquated, still remains a disgrace to our statute-book, yet attended with this mitigation, that the offender may be delivered, if any honest freeholder or other person of substance will take him into his service, and he abides in the same for one year, unless licensed to depart by his employer, who in such case shall forfeit ten pounds.7

4. Outlandish persons calling themselves Egyptians or gypsies are another object of the severity of some of our unrepealed statutes. These are a strange kind of commonwealth among themselves of wandering impostors and jugglers, who were first taken notice of in Germany about the beginning of the fitteenth century, and have since spread themselves all over Europe. Munster,(h) who is followed and relied upon by Spelman(i) and other writers, fixes the time of their first appearance to the year 1417, under passports, real or pretended, from the emperor Sigismund, king of Hungary. And pope Pius II. (who died ad 1464) mentions them in his history as thieves and vagabonds, then wandering with their families over Europe under the name of Zigari, and whom he supposes to have migrated from the country of Zigi, which nearly answers to the modern Circassia. In the compass of a few years they gained such a number of idle proselytes (who imitated their language and complexion, and betook themselves to the same arts of chiromancy, begging, and pilfering) that they became troublesome, and even formidable, to most of the states of Europe. Hence they were expelled from France in the year 1560, and from Spain in 1591.(k) And the government in England took the alarm much earlier, for in 1530 they are described, by statute 22 Hen. VIII. c. 10, as “outlandish people, calling themselves **166]Egyptians, using no craft nor feat of merchandise, who have come into this realm, and gone from shire to shire and place to place in great company, and used great, subtil, and crafty means to deceive the people, bearing them in hand that they by palmestry could tell men’s and women’s fortunes, and so many times, by craft and subtility, have deceived the people of their money, and also have committed many heinous felonies and robberies.” Wherefore they are directed to avoid the realm, and not to return, under pain of imprisonment, and forfeiture of their goods and chattels; and upon their trials for any felony which they may have committed, they shall not be entitled to a jury de medietate linguæ. And afterwards, it is enacted, by statute 1 & 2 P. and M. c. 4, and 5 Eliz. c. 20, that if any such persons shall be imported into this kingdom, the importer shall forfeit 40l. And if the Egyptians themselves remain one month in this kingdom, or if any person, being fourteen years old, (whether natural-born subject or stranger,) which hath been seen or found in the fellowship of such Egyptians, or which hath disguised him or herself like them, shall remain in the same one month, at one or several times, it is felony without benefit of clergy: and Sir Matthew Hale informs us(l) that at one Suffolk assizes no less than thirteen gypsies were executed upon these statutes, a few years before the restoration. But, to the honour of our national humanity, there are no instances more modern than this of carrying these laws into practice.8

5. To descend next to offences whose punishment is short of death. Common nuisances are a species of offence against the public order and economical regimen of the state, being either the doing of a thing to the annoyance of all the king’s subjects, or the neglecting to do a thing which the common good requires.(m) The nature of common nuisances and their distinction from private nuisances were explained in the *[*167preceding volume,(n) when we considered more particularly the nature of the private sort as a civil injury to individuals. I shall here only remind the student that common nuisances are such inconvenient and troublesome offences as annoy the whole community in general, and not merely some particular person, and therefore are indictable only, and not actionable, as it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow-subjects. Of this nature are, 1. Annoyances in highways, bridges, and public rivers, by rendering the same inconvenient or dangerous to pass, either positively, by actual obstructions, or negatively, by want of reparations.9 For both of these, the person so obstructing, or such individuals as are bound to repair and cleanse them, or (in default of these last) the parish at large, may be indicted, distrained to repair and mend them, and in some cases fined. And a presentment thereof by a judge of assize, &c., or a justice of the peace, shall be in all respects equivalent to an indictment.(o) Where there is a house erected or an enclosure made upon any part of the king’s demesnes, or of a highway or common street, or public water, or such like public things, it is properly called a purpresture.(p)10 2. All those kinds of nuisances (such as offensive trades and manufactures) which, when injurious to a private man, are actionable, are, when detrimental to the public, punishable by public prosecution, and subject to fine according to the quantity or the misdemeanour; and particularly the keeping of hogs in any city or market town is indictable as a public nuisance.(q)11 All disorderly inns or ale-houses, bawdy-houses, gaming-houses, stage-plays, unlicensed booths, and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may, upon indictment, be suppressed and fined.(r)12 Inns in particular, being intended for the lodging and receipt of travellers, may be indicted, suppressed, and the *[*168inn-keepers fined, if they refuse to entertain a traveller without a very sufficient cause; for thus to frustrate the end of their institution is held to be disorderly behaviour.(s) Thus, too, the hospitable laws of Norway punish, in the severest degree, such inn-keepers as refuse to furnish accommodations at a just and reasonable price.(t) 4. By statute 10 & 11 W. III. c. 17, all lotteries are declared to be public nuisances, and all grants, patents, or licenses for the same to be contrary to law. But, as state lotteries have, for many years past, been found a ready mode for raising the supply, an act was made, 19 Geo. III. c. 21, to license and regulate the keepers of such lottery-offices.13 5. The making and selling of fire-works and squibs, or throwing them about in any street, is, on account of the danger that may ensue to any thatched or timber buildings, declared to be a common nuisance by statute 9 & 10 W. III. c. 7, and therefore is punishable by fine.14 And to this head we may refer (though not declared a common nuisance) the making, keeping, or carriage of too large a quantity of gunpowder at one time or in one place or vehicle, which is prohibited by statute 12 Geo. III. c. 61, under heavy penalties and forfeiture.15 6. Eaves-droppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance, and presentable at the court-leet,(u) or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour.(v) 7. Lastly, a common scold, communis rixatrix, (for our law-Latin confines it to the feminine gender,) is a public nuisance to her neighbourhood. For which offence she may be indicted,(w) and, if convicted, shall(x) be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or cucking-stool, which, in the Saxon language, is said to signify the scolding-stool, though now it is frequently corrupted into ducking-stool, because the residue of the judgment is, that, when she is so placed therein, she shall be plunged in the water for her punishment.(y)

6. **169]Idleness in any person whatsoever is also a high offence against the public economy. In China it is a maxim that if there be a man who does not work, or a woman that is idle, in the empire, somebody must suffer cold or hunger, the produce of the lands not being more than sufficient, with culture, to maintain the inhabitants; and, therefore, though the idle person may shift off the want from himself, yet it must in the end fall somewhere. The court also of Areopagus, at Athens, punished idleness, and exerted a right of examining every citizen in what manner he spent his time; the intention of which was,(z) that the Athenians, knowing they were to give an account of their occupations, should follow only such as were laudable, and that there might be no room left for such as lived by unlawful arts. The civil law expelled all sturdy vagrants from the city:(a) and, in our own law, all idle persons or vagabonds, whom our antient statutes describe to be “such as wake on the night and sleep on the day, and haunt customable taverns and ale-houses, and routs about, and no man wot from whence they came nor whither they go,” or such as are more particularly described by statute 17 Geo. II. c. 5, and divided into three classes,—idle and disorderly persons, rogues and vagabonds, and incorrigible rogues: all these are offenders against the good order and blemishes in the government of any kingdom. They are therefore all punished by the statute last mentioned; that is to say, idle and disorderly persons with one month’s imprisonment in the house of correction; rogues and vagabonds with whipping and imprisonment not exceeding six months; and incorrigible rogues with the like discipline and confinement not exceeding two years; the breach and escape from which confinement in one of an inferior class ranks him among incorrigible rogues, and in a rogue (before incorrigible) makes him a felon and liable to be transported for seven years. Persons harbouring vagrants are liable to a fine of forty shillings, and to pay all expenses brought upon the parish thereby; in the same **170]manner as, by our antient laws, whoever harboured any stranger for more than two nights was answerable to the public for any offence that such his inmate might commit.(b)16

7. Under the head of public economy may also be properly ranked all sumptuary laws against luxury, and extravagant expenses in dress, diet, and the like; concerning the general utility of which to a state, there is much controversy among the political writers. Baron Montesquieu lays it down(c) that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question how far private luxury is a public evil, and, as such, cognizable by public laws. And, indeed, our legislators have several times changed their sentiments as to this point; for formerly there **171]were a multitude of penal laws existing to restrain excess in apparel;(d) chiefly made in the reigns of Edward the Third, Edward the Fourth, and Henry the Eighth, against piked shoes, short doublets, and long coats; all of which were repealed by statute 1 Jac. I. c. 25. But as to excess of diet there still remains one antient statute unrepealed, 10 Edw. III. st. 3, which ordains that no man shall be served at dinner or supper with more than two courses, except upon some great holidays, there specified, in which he may be served with three.

8. Next to that of luxury naturally follows the offence of gaming, which is generally introduced to supply or retrieve the expenses occasioned by the former; it being a kind of tacit confession that the company engaged therein do, in general, exceed the bounds of their respective fortunes; and therefore they cast lots to determine upon whom the ruin shall at present fall, that the rest may be saved a little longer. But, taken in any light, it is an offence of the most alarming nature, tending by necessary consequence to promote public idleness, theft, and debauchery among those of a lower class; and among persons of a superior rank it hath frequently been attended with the sudden ruin and desolation of antient and opulent families, an abandoned prostitution of every principle of honour and virtue, and too often hath ended in self-murder.17 To restrain this pernicious vice among the inferior sort of people, the statute 33 Hen. VIII. c. 9 was made; which prohibits to all but gentlemen the games of tennis, tables, cards, dice, bowls, and other unlawful diversions there specified,(e) unless in the time of Christmas, under pecuniary pains and imprisonment. And the same law, and also the statute 33 Geo. II. c. 24, inflict pecuniary penalties, as well upon the master of any public house where servants are permitted to game, as upon the servants themselves who *[*172are found to be gaming there. But this is not the principal ground of modern complaint; it is the gaming in high life that demands the attention of the magistrate; a passion to which every valuable consideration is made a sacrifice, and which we seem to have inherited from our ancestors the antient Germans; whom Tacitus(f) describes to have been bewitched with a spirit of play to a most exorbitant degree. “They addict themselves,” says he, “to dice (which is wonderful) when sober, and as a serious employment, with such a mad desire of winning or losing, that when stripped of every thing else they will stake at last their liberty and their very selves. The loser goes into a voluntary slavery, and, though younger and stronger than his antagonist, suffers himself to be bound and sold. And this perseverance in so bad a cause they call the point of honour: ea est in re parva pervicacia, ipsi fidem vocant.” One would almost be tempted to think Tacitus was describing a modern Englishman. When men are thus intoxicated with so frantic a spirit, laws will be of little avail; because the same false sense of honour that prompts a man to sacrifice himself will deter him from appealing to the magistrate. Yet it is proper that laws should be, and be known publicly, that gentlemen may consider what penalties they wilfully incur, and what a confidence they repose in sharpers, who, if successful in play, are certain to be paid with honour, or, if unsuccessful, have it in their power to be still greater gainers by informing. For, by statute 16 Car. II. c. 7, if any person by playing or betting shall lose more than 100l. at one time, he shall not be compellable to pay the same; and the winner shall forfeit treble the value, one moiety to the king, the other to the informer. The statute 9 Anne, c. 14 enacts that all bonds and other securities given for money won at play, or money lent at the time to play withal, shall be utterly void; that all mortgages and encumbrances of lands made upon the same consideration shall be and enure to the use of the heir of the mortgagor; that if any person at any time or sitting loses 10l. at play, he may sue the winner, and recover it back by action of debt at law; and in case the loser does not, any other person may sue the winner for treble the sum so lost; and the plaintiff may by bill in equity examine the defendant himself upon oath; and that in any of these suits no privilege of parliament shall be allowed. The *[*173statute further enacts, that if any person by cheating at play shall win any money or valuable thing, or shall at any one time or sitting win more than 10l., he may be indicted thereupon, and shall forfeit five times the value to any person who will sue for it,18 and (in case of cheating) shall be deemed infamous, and suffer such corporal punishment as in case of wilful perjury. By several statutes of the reign of king George II.,(g) all private lotteries by tickets, cards, or dice (and particularly the games of faro, basset, ace of hearts, hazard, passage, rolly polly, and all other games with dice, except back-gammon) are prohibited, under a penalty of 200l. for him that shall erect such lotteries, and 50l. a time for the players Public lotteries, unless by authority of parliament, and all manner of ingenious devices, under the denomination of sales or otherwise, which in the end are equivalent to lotteries, were before prohibited by a great variety of statutes(h) under heavy pecuniary penalties. But particular descriptions will ever be lame and deficient, unless all games of mere chance are at once prohibited; the inventions of sharpers being swifter than the punishment of the law, which only hunts them from one device to another. The statute 13 Geo. II. c. 19, to prevent the multiplicity of horse-races, another fund of gaming, directs that no plates or matches under 50l. value shall be run, upon penalty of 200l. to be paid by the owner of each horse running, and 100l. by such as advertise the plate.19 By statute 18 Geo. II. c. 24, the statute 9 Anne is further enforced, and some deficiencies supplied; the forfeitures of that act may now be recovered in a court of equity; and, moreover, if any man be convicted upon information or indictment of winning or losing at play, or by betting at one time 10l. or 20l. within twenty-four hours, he shall be fined five times the sum for the benefit of the poor of the parish. Thus careful has the legislature been to prevent this destructive vice; which may show that our laws against gaming **174]are not so deficient, as ourselves and our magistrates in putting those laws in execution.

9. Lastly, there is another offence, constituted by a variety of acts of parliament, which are so numerous and so confused, and the crime itself of so questionable a nature, that I shall not detain the reader with many observations thereupon. And yet it is an offence which the sportsmen of England seem to think of the highest importance, and a matter, perhaps the only one, of general and national concern, associations having been formed all over the kingdom to prevent its destructive progress. I mean the offence of destroying such beasts and fowls as are ranked under the denomination of game; which, we may remember, was formerly observed(i) (upon the old principles of the forest law) to be a trespass and offence in all persons alike who have not authority from the crown to kill game, (which is royal property,) by the grant either of a free warren or at least a manor of their own. But the laws called the game laws have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king’s license expressed by the grant of a franchise, are guilty of the first original offence of encroaching on the royal prerogative.20 And those indigent persons who do so without having such rank or fortune as is generally called a qualification are guilty not only of the original offence, but of the aggravations also created by the statutes for preserving the game; which aggravations are so severely punished, and those punishments so implacably inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. The offence, thus aggravated, I have ranked under the present head, because the only rational footing upon which we can consider it as a crime is that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings, which is an offence against the public police and economy *[*175of the commonwealth.

The statutes for preserving the game are many and various, and not a little obscure and intricate, it being remarked(j) that in one statute only, 5 Anne, c. 14, there is false grammar in no fewer than six places, besides other mistakes; the occasion of which, or what denomination of persons were probably the penners of these statutes, I shall not at present inquire. It is, in general, sufficient to observe that the qualifications for killing game, as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 100l. per annum,21 there being fifty times the property required to enable a man to kill a partridge as to vote for a knight of the shire: 2. A leasehold for ninety-nine years of 150l. per annum: 3. Being the son and heir apparent of an esquire (a very loose and vague description) or person of superior degree: 4. Being the owner or keeper of a forest, park, chase or warren. For unqualified persons transgressing these laws by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game or have it in possession at unseasonable times of the year or unseasonable hours of the day or night, on Sundays or on Christmas day, there are various penalties assigned, corporal and pecuniary, by different statutes;(k) on any of which, but only on one at a time, the justices may convict in a summary way, or (in most of them) prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12, no person, however qualified to kill, may make merchandise of this valuable privilege by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.22

CHAPTER XIV.

OF HOMICIDE.

**176]In the ten preceding chapters we have considered, first, such crimes and misdemeanours as are more immediately injurious to God and his holy religion; secondly, such as violate or transgress the law of nations; thirdly, such as more especially affect the king, the father and representative of his people; fourthly, such as more directly infringe the rights of the public or commonwealth, taken in its collective capacity; and are now, lastly, to take into consideration those which in a more peculiar manner affect and injure individuals or private subjects.

Were these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely under the notion of private wrongs, for which a satisfaction would be due only to the party injured, the manner of obtaining which was the subject of our inquiries in the preceding book. But the wrongs which we are now to treat of are of a much more extensive consequence: 1. Because it is impossible they can be committed without a violation of the laws of nature,—of the moral as well as political rules of right: 2. Because they include in them almost always a breach of the public peace: 3. Because by their example and evil tendency they threaten and endanger the subversion of all civil society. Upon these accounts it is **177]that, besides the private satisfaction due and given in many cases to the individual by action for the private wrong, the government also calls upon the offender to submit to public punishment for the public crime. And the prosecution of these offences is always at the suit and in the name of the king, in whom, by the texture of our constitution, the jus gladii, or executory power of the law, entirely resides. Thus, too, in the old Gothic constitution there was a threefold punishment inflicted on all delinquents; first, for the private wrong to the party injured; secondly, for the offence against the king by disobedience to the laws; and, thirdly, for the crime against the public by their evil example.(a) Of which we may trace the groundwork in what Tacitus tells us of his Germans,(b) that, whatever offenders were fined, “pars mulctæ regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur.”

These crimes and misdemeanours against private subjects are principally of three kinds: against their persons, their habitations, and their property.

Of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away that life which is the immediate gift of the great Creator, and of which, therefore, no man can be entitled to deprive himself or another but in some manner either expressly commanded in or evidently, deducible from those laws which the Creator has given us; the divine laws, I mean, of either nature or revelation. The subject, therefore, of the present chapter, will be the offence of homicide, or destroying the life of man, in its several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it.

Now, homicide, or the killing of any human creature, is of three kinds: justifiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the **178]third is the highest crime against the law of nature that man is capable of committing.

I. Justifiable homicide is of divers kinds.

1. Such as is owing to some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence, in the party killing, and therefore without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put a malefactor to death who had forfeited his life by the laws and verdict of his country. This is an act of necessity, and even of civil duty, and therefore not only justifiable, but commendable, where the law requires it. But the law must require it, otherwise it is not justifiable: therefore, wantonly to kill the greatest of malefactors, a felon or a traitor, attainted or outlawed, deliberately, uncompelled and extrajudicially, is murder.(c) For, as Bracton(d) very justly observes, “istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet justè occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam.” And, further, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder.(e) And upon this account Sir Matthew Hale himself, though he accepted the place of a judge of the common pleas under Cromwell’s government, (since it is necessary to decide the disputes of civil property in the worst of times,) yet declined to sit on the crown side at the assizes and try prisoners, having very strong objections to the legality of the usurper’s commission;(f) a distinction perhaps rather too refined, since the punishment of crimes is at least as necessary to society as maintaining the boundaries of property. Also, such judgment, when legal, must be executed by the proper officer or his appointed deputy; for no one else is required by law to do it, which requisition it is that justifies the homicide. If another *[*179person doth it of his own head, it is held to be murder,(g) even though it be the judge himself.(h) It must, further, be executed servato juris ordine; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versa, it is murder,(i) for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law; but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commission of homicide, and, besides, this license might occasion a very gross abuse of his power. The king, indeed, may remit part of a sentence, as in the case of treason, all but the beheading; but this is no change, no introduction of a new punishment: and in the case of felony, where the judgment is to be hanged, the king (it hath been said) cannot legally order even a peer to be beheaded.(k) But this doctrine will be more fully considered in a subsequent chapter.

Again: in some cases homicide is justifiable rather by the permission than by the absolute command of the law, either for the advancement of public justice, which without such indemnification would never be carried on with proper vigour; or, in such instances where it is committed for the prevention of some atrocious crime which cannot otherwise be avoided.

2. Homicides committed for the advancement of public justice are:—1. Where an officer, in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him.(l) 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted, and in the endeavour to take him kills him.(m) This is similar to the old Gothic constitutions, which (Stiernhook informs us)(n) “furem, si aliter capi non posset, occidere *[*180permittunt.” 3. In case of a riot, or rebellious assembly, the officers endeavouring to disperse the mob are justifiable in killing them, both at common law,(o) and by the riot act 1 Geo. I. c. 5. 4. Where the prisoners in a gaol, or going to a gaol, assault the gaoler or officer, and he in his defence kills any of them, it is justifiable for the sake of preventing an escape.(p) 5. If trespassers in forests, parks, chases, or warrens will not surrender themselves to the keepers, they may be slain, by virtue of the statute 21 Edw. I. st. 2, demalefactoribus in parcis, and 3 & 4 W. and M. c. 10.1 But in all these cases there must be an apparent necessity on the officer’s side, viz., that the party could not be arrested or apprehended, the riot could not be suppressed, the prisoners could not be kept in hold, the deer-stealers could not but escape, unless such homicide were committed; otherwise, without such absolute necessity, it is not justifiable.2 6. If the champions in a trial by battle killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, who was thereby presumed to have decided in favour of the truth.(q)3

In the next place, such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature;(r) and also by the law of England, as it stood so early as the time of Bracton,(s) and as it is since declared in statute 24 Hen. VIII. c. 5.4 If any person attempts a robbery or murder of another, or attempts to break open a house, in the night-time, (which extends also to an attempt to burn it,)(t) and shall be killed in such attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the daytime, unless it carries with it the attempt of robbery also. So the Jewish law, which punished no theft with death, makes homicide only justifiable in case of nocturnal house-breaking: if a thief be found breaking up, and he be “smitten that **181]he die, no blood shall be shed for him; but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution.”(u) At Athens, if any theft was committed by night, it was lawful to kill the criminal if taken in the fact:(w) and by the Roman law of the twelve tables, a thief might be slain by night with impunity; or even by day, if he armed himself with any dangerous weapon:(x) which amounts to nearly the same as is permitted by our own constitutions.

The Roman law also justifies homicide when committed in defence of the chastity either of one’s self or relations;(y) and so also, according to Selden,(z) stood the law in the Jewish republic. The English law likewise justifies a woman killing one who attempts to ravish her:(a) and so too the husband or father may justify killing a man who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other.(b) And I make no doubt but the forcibly attempting a crime of a still more detestable nature may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own and all other laws seems to be this,—that where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does, who holds(c) “that all manner of force without right upon a man’s person puts him in a state of war with the aggressor; and, of consequence, that, being in such state of war, he may lawfully kill him that puts him under this unnatural restraint.” However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of every other *[*182well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.

In these instances of justifiable homicide, it may be observed that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error or omission; so trivial, however, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment.

II. Excusable homicide is of two sorts; either per infortunium, by misadventure; or se defendendo, upon a principle of self-preservation. We will first see wherein these two species of homicide are distinct, and then wherein they agree.

1. Homicide per infortunium or misadventure is where a man, doing a lawful act without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off and kills a stander-by; or where a person qualified to keep a gun is shooting at a mark and undesignedly kills a man:(d) for the act is lawful, and the effect is merely accidental.5 So where a parent is moderately correcting his child, a master his apprentice or scholar, or an officer punishing a criminal, and happens to occasion his death, it is only misadventure; for the act of correction is lawful; but if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensues, it is manslaughter at least, and in some cases (according to the circumstances) murder;(e) for the act of immoderate correction is unlawful. *[*183Thus, by an edict of the emperor Constantine,(f) when the rigour of the Roman law with regard to slaves began to relax and soften, a master was allowed to chastise his slave with rods and imprisonment, and if death accidentally ensued, he was guilty of no crime; but if he struck him with a club or a stone, and thereby occasioned his death, or if in any other yet grosser manner, “immoderate suo jure utatur, tunc reus homicidii sit.”

But to proceed: A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act: and so are boxing and sword-playing, the succeeding amusement of their posterity; and therefore if a knight in the former case, or a gladiator in the latter, be killed, such killing is felony or manslaughter. But if the king command or permit such diversion, it is said to be only misadventure; for then the act is lawful.(g) In the like manner as, by the laws both of Athens and Rome, he who killed another in the pancratium, or public games authorized or permitted by the state, was not held to be guilty of homicide.(h) Likewise to whip another’s horse whereby he runs over a child and kills him, is held to be accidental in the rider, for he had done nothing unlawful; but manslaughter in the person who whipped him, for the act was a trespass, and at best a piece of idleness of inevitably dangerous consequence.(i)6 And in general if death ensues in consequence of an idle, dangerous, and unlawful sport, as shooting or casting stones in a town, or the barbarous diversion of cock-throwing, in these and similar cases the slayer is guilty of manslaughter, and not misadventure only, for these are unlawful acts.(k)

2. Homicide in self-defence or se defendendo, upon a sudden affray, is also excusable, rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned as calculated to **184]hinder the perpetration of a capital crime; which is not only a matter of excuse but of justification. But the self-defence which we are now speaking of is that whereby a man may protect himself from an assault or the like, in the course of a sudden broil or quarrel, by killing him who assaults him. And this is what the law expresses by the word chance-medley, or (as some rather choose to write it) chaud-medley, the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion; both of them of pretty much the same import: but the former is in common speech too often erroneously applied to any manner of homicide or misadventure; whereas it appears, by the statute 24 Hen. VIII. c. 5, and our antient books,(l) that it is properly applied to such killing as happens in self-defence upon a sudden rencounter.(m) This right of natural defence does not imply a right of attacking: for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence but in sudden and violent cases, when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible (or at least probable) means of escaping from his assailant.7

It is frequently difficult to distinguish this species of homicide (upon chance-medley in self-defence) from that of manslaughter, in the proper legal sense of the word.(n) But the true criterion between them seems to be this: when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter: but if the slayer has not begun the fight, or (having begun) endeavours to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence.(o) For which reason the law requires that the person who kills another in his own defence *[*185should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not factitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother’s blood. And though it may be cowardice, in time of war between two independent nations, to flee from an enemy, yet between two fellow-subjects the law countenances no such point of honour, because the king and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves.(p) In this the civil law also agrees with ours, or perhaps goes rather further: “qui cum aliter tueri se non possunt, damni culpam dederint, innoxii sunt.”(q) The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit him,(r) for it may be so fierce as not to allow him to yield a step without manifest danger of his life or enormous bodily harm, and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice(s) as well as of the municipal law.

And as the manner of the defence, so is also the time to be considered; for, if the person assaulted does not fall upon the aggressor till the affray is over, or when he is running away, this is revenge, and not defence. Neither, under the colour of self-defence, will the law permit a man to screen himself from the guilt of deliberate murder; for if two persons, A. and B., agree to fight a duel, and A. gives the first onset, and B. retreats as far as he safely can and then kills A., this is murder, because of the previous malice and concerted design.(t) But if A., upon a sudden quarrel, assaults B. first, and upon B.’s returning the assault A. really and bona fide flees, and, being driven to the wall, turns again upon B. and kills him, this may be se defendendo according to some of our writers,(u) *[*186though others(w) have thought this opinion too favourable, inasmuch as the necessity to which he is at last reduced originally arose from his own fault. Under this excuse of self-defence the principal civil and natural relations are comprehended: therefore master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other respectively, are excused; the act of the relation assisting being construed the same as the act of the party himself.(x)

There is one species of homicide se defendendo where the party slain is equally innocent as he who occasions his death; and yet this homicide is also excusable, from the great universal principle of self-preservation which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish. As, among others, in that case mentioned by lord Bacon,(y) where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man’s is excusable through unavoidable necessity and the principle of self-defence, since their both remaining on the same weak plank is a mutual though innocent attempt upon and an endangering of each other’s life.

Let us next take a view of those circumstances wherein these two species of homicide by misadventure and self-defence agree; and those are in their blame and punishment. For the law sets so high a value upon the life of a man that it always intends some misbehaviour in the person who takes it away, unless by the command or express permission of the law. In the case of misadventure it presumes negligence, or at least a want of sufficient caution, in him who was so unfortunate as to commit it, who therefore is not altogether faultless.(z) And as to the necessity which excuses a man who **187]kills another se defendendo, lord Bacon(a) entitles it necessitas culpabilis, and thereby distinguishes it from the former necessity of killing a thief or a malefactor. For the law intends that the quarrel or assault arose from some unknown wrong, or some provocation either in word or deed; and since, in quarrels, both parties may be, and usually are, in some fault, and it scarce can be tried who was originally in the wrong, the law will not hold the survivor entirely guiltless. But it is clear, in the other case, that where I kill a thief that breaks into my house, the original default can never be upon my side. The law, besides, may have a further view: to make the crime of homicide more odious, and to caution men how they venture to kill another upon their own private judgment, by ordaining that he who slays his neighbour, without an express warrant from the law so to do, shall in no case be absolutely free from guilt.

Nor is the law of England singular in this respect. Even the slaughter of enemies required a solemn purgation among the Jews; which implies that the death of a man, however it happens, will leave some stain behind it. And the Mosaical law(b) appointed certain cities of refuge for him “who killed his neighbour unawares; as, if a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down a tree, and the head slippeth from the helve and lighteth upon his neighbour that he die, he shall flee unto one of these cities and live.” But it seems he was not held wholly blameless any more than in the English law, since the avenger of blood might slay him before he reached his asylum, or if he afterwards stirred out of it till the death of the high-priest. In the imperial law, likewise,(c) casual homicide was excused by the indulgence of the emperor, signed with his own sign-manual, “annotatione principis;” otherwise the death of a man, however committed, was in some degree punishable. Among the Greeks,(d) homicide by misfortune was expiated by voluntary **188]banishment for a year.(e) In Saxony a fine is paid to the kindred of the slain; which also, among the Western Goths, was little inferior to that of voluntary homicide:(f) and in France(g) no person is ever absolved, in cases of this nature, without a largess to the poor, and the charge of certain masses for the soul of the party killed.

The penalty inflicted by our laws is said by Sir Edward Coke to have been antiently no less than death;(h) which, however, is with reason denied by later and more accurate writers.(i) It seems rather to have consisted in a forfeiture, some say of all the goods and chattels, others of only part of them, by way of fine or weregild:(k) which was probably disposed of, as in France, in pios usus, according to the humane superstition of the times, for the benefit of his soul who was thus suddenly sent to his account with all his imperfections on his head. But that reason having long ceased, and the penalty (especially if a total forfeiture) growing more severe than was intended in proportion as personal property has become more considerable, the delinquent has now, and has had as early as our records will reach,(l) a pardon and writ of restitution of his goods as a matter of course and right, only paying for suing out the same.(m) And, indeed, to prevent this expense, in cases where the death has notoriously happened by misadventure or in self-defence, the judges will usually permit (if not direct) a general verdict of acquittal.(n)

III. Felonious homicide is an act of a very different nature from the former, being the killing of a human creature, of any age or sex, without justification or excuse. This may be done either by killing one’s self, or another man.

*[*189Self-murder, the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure, though the attempting it seems to be countenanced by the civil law,(o) yet was punished by the Athenian law with cutting off the hand which committed the desperate deed.(p) And also the law of England wisely and religiously considers that no man hath a power to destroy life but by commission from God, the author of it: and, as the suicide is guilty of a double offence; one spiritual, in invading the prerogative of the Almighty and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one’s self. And this admits of accessories before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the adviser is guilty of murder.(q) A felo de se, therefore, is he that deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death: as if, attempting to kill another, he runs upon his antagonist’s sword; or, shooting at another, the gun bursts and kills himself.(r)8 The party must be of years of discretion and in his senses, else it is no crime. But this excuse ought not to be strained to that length to which our coroner’s juries are apt to carry it, viz., that the very act of suicide is an evidence of insanity; as if every man who acts contrary to reason had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer. The law very rationally judges that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed in a former chapter,(s) to *[*190form a legal excuse. And, therefore, if a real lunatic kills himself in a lucid interval, he is a felo de se as much as another man.(t)

But now the question follows,—What punishment can human laws inflict on one who has withdrawn himself from their reach? They can only act upon what he has left behind him, his reputation and fortune; on the former by an ignominious burial in the highway, with a stake driven through his body;9 on the latter by a forfeiture of all his goods and chattels to the king; hoping that his care for either his own reputation or the welfare of his family would be some motive to restrain him from so desperate and wicked an act. And it is observable that this forfeiture has relation to the time of the act done in the felon’s lifetime, which was the cause of his death. As if husband and wife be possessed jointly of a term of years in land, and the husband drowns himself, the land shall be forfeited to the king, and the wife shall not have it by survivorship. For by the act of casting himself into the water he forfeits the term; which gives a title to the king prior to the wife’s title by survivorship, which could not accrue till the instant of her husband’s death.(u) And though it must be owned that the letter of the law herein borders a little upon severity, yet it is some alleviation that the power of mitigation is left in the breast of the sovereign, who upon this, as on all other occasions, is reminded by the oath of his office to execute judgment in mercy.10

The other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt which divide the offence into manslaughter and murder, the difference between which may be partly collected from what has been incidentally mentioned in the preceding articles, and principally consists in this,—that manslaughter, when voluntary, arises from the sudden heat of the passions, murder from the wickedness of the heart.

**191]1. Manslaughter is therefore thus defined:(v) the unlawful killing of another without malice, either express or implied; which may be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act. These were called, in the Gothic constitutions, “homicidia vulgaria; quæ aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiæ calore et impetu.”(w) And hence it follows that in manslaughter there can be no accessories before the fact, because it must be done without premeditation.

As to the first, or voluntary branch: if, upon a sudden quarrel, two persons fight, and one of them kills the other, this is manslaughter; and so it is if they, upon such an occasion, go out and fight in a field, for this is one continued act of passion,(x) and the law pays that regard to human frailty as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So, also, if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself, yet neither is it murder, for there is no previous malice, but it is manslaughter.(y) But in this and in every other case of homicide upon provocation, if there be a sufficient cooling-time for passion to subside and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder.(z) So, if a man takes another in the act of adultery with his wife and kills him directly upon the spot, though this was allowed by the laws of Solon,(a) as likewise by the Roman civil law, (if the adulterer was found in the husband’s own house,)(b) and also among the antient Goths,(c) yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, *[*192but it is manslaughter.(d) It is, however, the lowest degree of it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation.(e) Manslaughter, therefore, on a sudden provocation, differs from excusable homicide se defendendo in this,—that in one case there is an apparent necessity for self-preservation to kill the aggressor, in the other no necessity at all, being only a sudden act of revenge.

The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure in this,—that misadventure always happens in consequence of a lawful act, but this species of manslaughter in consequence of an unlawful one. As, if two persons play at sword and buckler, unless by the king’s command, and one of them kills the other, this is manslaughter, because the original act was unlawful, but it is not murder, for the one had no intent to do the other any personal mischief.(f) So, where a person does an act lawful in itself, but in an unlawful manner, and without due caution and circumspection, as when a workman flings down a stone or piece of timber into the street and kills a man, this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village where few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning,(g) and murder if he knows of their passing and gives no warning at all, for then it is malice against all mankind.(h) And in general, when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter,(i) according to the nature of the act which occasioned it. If it be in prosecution of a felonious *[*193intent, or in its consequences naturally tended to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it will only amount to manslaughter.(j)

Next, as to the punishment of this degree of homicide: the crime of manslaughter amounts to felony, but within the benefit of clergy; and the offender shall be burned in the hand and forfeit all his goods and chattels.11

But there is one species of manslaughter which is punished as murder, the benefit of clergy being taken away from it by statute, namely, the offence of mortally stabbing another, though done upon sudden provocation. For, by statute 1 Jac. I. c. 8, when one thrusts or stabs another not then having a weapon drawn, or who hath not then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought. This statute was made on account of the frequent quarrels and stabbings with short daggers between the Scotch and the English at the accession of James the First,(k) and being, therefore, of a temporary nature, ought to have expired with the mischief which it meant to remedy. For, in point of solid and substantial justice, it cannot be said that the mode of killing, whether by stabbing, strangling, or shooting, can either extenuate or enhance the guilt, unless where, as in the case of poisoning, it carries with it an internal evidence of cool and deliberate malice. But the benignity of the law hath construed the statute so favourably in behalf of the subject, and so strictly when against him, that the offence of stabbing now stands almost upon the same footing as it did at the common law.(l) Thus, (not to repeat the cases before mentioned of stabbing an adulteress, &c., which are barely manslaughter, as at common law,) in the construction of this statute it hath been doubted whether, if the deceased had struck at all before the mortal blow given, this does not take it out of the statute, though in the preceding quarrel the stabber had given the first blow; and **194]it seems to be the better opinion that this is not within the statute.(m) Also, it hath been resolved that the killing a man by throwing a hammer or other blunt weapon is not within the statute; and whether a shot with a pistol be so or not, it is doubted.(n) But if the party slain had a cudgel in his hand, or had thrown a pot or bottle or discharged a pistol at the party stabbing, this is a sufficient having a weapon drawn on his side within the words of the statute.(o)12

2. We are next to consider the crime of deliberate and wilful murder, a crime at which human nature starts, and which is, I believe, punished almost universally throughout the world with death. The words of the Mosaical law (over and above the general precept to Noah,(p) that “whoso sheddeth man’s blood, by man shall his blood be shed”) are very emphatical in prohibiting the pardon of murderers.(q) “Moreover, ye shall take no satisfaction for the life of a murderer who is guilty of death, but he shall surely be put to death; for the land cannot be cleansed of the blood that is shed therein but by the blood of him that shed it.” And therefore our law has provided one course of prosecution, (that by appeal, of which hereafter,) wherein the king himself is excluded the power of pardoning murder; so that, were the king of England so inclined, he could not imitate that Polish monarch mentioned by Puffendorf:(r) who thought proper to remit the penalties of murder to all the nobility in an edict with this arrogant preamble, “nos, divini juris rigorem moderantes, &c.” But let us now consider the definition of this great offence.

The name of murder (as a crime) was antiently applied only to the secret killing of another,(s) (which the word moerda *[*195signifies in the Teutonic language;)(t) and it was defined, “homicidium quod nullo vidente, nullo sciente, clam perpetratur;”(u) for which the vill wherein it was committed, or (if that were too poor) the whole hundred, was liable to a heavy amercement; which amercement itself was also denominated murdrum.(w) This was an antient usage among the Goths in Sweden and Denmark; who supposed the neighbourhood, unless they produced the murderer, to have perpetrated or at least connived at the murder,(x) and, according to Bracton,(y) was introduced into this kingdom by king Canute to prevent his countrymen, the Danes, from being privily murdered by the English; and was afterwards continued by William the Conqueror, for the like security to his own Normans.(z) And therefore if, upon inquisition had, it appeared that the person found slain was an Englishman, (the presentment whereof was denominated englescherie,)(a) the country seems to have been excused from this burthen. But, this difference being totally abolished by statute 14 Edw. III. c. 4, we must now (as is observed by Staundforde)(b) define murder in quite another manner, without regarding whether the party slain was killed openly or secretly, or whether he was of English or foreign extraction.

Murder is, therefore, now thus defined or rather described by Sir Edward Coke:(c) “when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king’s peace, with malice aforethought, either express or implied.” The best way of examining the nature of this crime will be by considering the several branches of this definition.

First, it must be committed by a person of sound memory and discretion; for lunatics or infants, as was formerly observed, are incapable of committing any crime; unless in such cases where they show a consciousness of doing wrong, and of course a discretion or discernment between good and evil.13

Next, it happens when a person of such sound discretion unlawfully killeth. The unlawfulness arises from the killing without *[*196warrant or excuse; and there must also be an actual killing to constitute murder; for a bare assault, with intent to kill, is only a great misdemeanour, though formerly it was held to be murder.(d) The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death by which human nature may be overcome. And if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a totally different species of death, as by shooting with a pistol, or starving. But where they only differ in circumstance, as if a wound be alleged to be given with a sword and it proves to have arisen from a staff, an axe, or a hatchet, this difference is immaterial.(e)14 Of all species of deaths the most detestable is that of poison; because it can, of all others, be the least prevented either by manhood or forethought.(f) And, therefore, by the statute 22 Hen. VIII. c. 2, it was made treason, and a more grievous and lingering kind of death was inflicted on it than the common law allowed; namely, boiling to death;15 but this act did not live long, being repealed by 1 Edw. VI. c. 12. There was also, by the antient common law, one species of killing held to be murder which may be dubious at this day; as there hath not been an instance wherein it has been held to be murder for many ages past:(g) I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed.(h) The Gothic laws punished, in this case, both the judge, the witnesses, and the prosecutor: “peculiari pœna judicem puniunt; pecutiari testes, quorum fides judicem seduxit; peculiari denique et maxima auctorem, ut homicidam.”(i) And, among the Romans, the lex Cornelia, de sicariis, punished the false witness with death, as being guilty of a species of assassination.(k) And there is no doubt but this is equally murder in foro conscientiæ as killing with a *[*197sword; though the modern law (to avoid the danger of deterring witnesses from giving evidence upon capital prosecutions, if it must be at the peril of their own lives) has not yet punished it as such.16 If a man, however, does such an act of which the probable consequence may be, and eventually is, death; such killing may be murder, although no stroke be struck by himself and no killing be primarily intended: as was the case of the unnatural son who exposed his sick father to the air, against his will, by reason whereof he died;(l) of the harlot who laid her child under leaves in an orchard, where a kite struck it and killed it;(m) and of the parish officers who shifted a child from parish to parish till it died for want of care and sustenance.(n)17 So too if a man hath a beast that is used to do mischief, and he, knowing it, suffers it to go abroad, and it kills a man, even this is manslaughter in the owner: but if he had purposely turned it loose, though barely to frighten people and make what is called sport, it is with us (as in the Jewish law) as much murder as if he had incited a bear or dog to worry them.(o) If a physician or surgeon gives his patient a portion or plaister to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure; and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance:(p)18 but it hath been holden that if it be not a regular physician or surgeon who administers the medicine or performs the operation, it is manslaughter at the least.(q) Yet Sir Matthew Hale very justly questions the law of this determination.(r)19 In order also to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered; in the computation of which the whole day upon which the hurt was done shall be reckoned the first.(s)

Further, the person killed must be “a reasonable creature in being, and under the king’s peace,” at the time of the **198]killing. Therefore to kill an alien, a Jew, or an outlaw, who are all under the king’s peace and protection, is as much murder as to kill the most regular-born Englishman; except he be an alien enemy in time of war.(t) To kill a child in its mother’s womb is now no murder, but a great misprision: but if the child be born alive and dieth by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder in such as administered or gave them.(u) But as there is one case where it is difficult to prove the child’s being born alive, namely, in the case of the murder of bastard children by the unnatural mother, it is enacted, by statute 21 Jac. I. c. 27, that if any woman be delivered of a child which if born alive should by law be a bastard, and endeavours privately to conceal its death by burying the child or the like, the mother so offending shall suffer death as in the case of murder, unless she can prove, by one witness at least, that the child was actually born dead. This law, which savours pretty strongly of severity, in making the concealment of the death almost conclusive evidence of the child’s being murdered by the mother, is nevertheless to be also met with in the criminal codes of many other nations of Europe; as the Danes, the Swedes, and the French.(v) But I apprehend it has of late years been usual with us in England, upon trials for this offence, to require some sort of presumptive evidence that the child was born alive before the other constrained presumption (that the child whose death is concealed was therefore killed by his parent) is admitted to convict the prisoner.20

Lastly, the killing must be committed with malice aforethought, to make it the crime of murder. This is the grand criterion which now distinguishes murder from other killing; and this malice prepense, malitia præcogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved, and malignant heart;(w)un disposition à faire un male chose;(x) and it may be either express or implied in law Express *[*199malice is when one, with a sedate deliberate mind and formed design, doth kill another: which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.(y) This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder: thinking it their duty as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power either divine or human, but in direct contradiction to the laws both of God and man: and therefore the law has justly fixed the crime and punishment of murder on them and on their seconds also.(z)21 Yet it requires such a degree of passive valour to combat the dread of even undeserved contempt, arising from the false notions of honour too generally received in Europe, that the strongest prohibitions and penalties of the law will never be entirely effectual to eradicate this unhappy custom, till a method be found out of compelling the original aggressor to make some other satisfaction to the affronted party which the world shall esteem equally reputable as that which is now given at the hazard of life and fortune, as well of the person insulted as of him who hath given the insult.22 Also, if even upon a sudden provocation one beats another in a cruel and unusual manner so that he dies, though he did not intend his death, yet he is guilty of murder by express malice; that is, by an express evil design, the genuine sense of malitia. As when a park-keeper tied a boy that was stealing wood to a horse’s tail and dragged him along the park, when a master corrected his servant with an iron bar, and a schoolmaster stamped on his scholar’s belly, so that each of the sufferers died, these were justly held to be murders, because, the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter.(a)23 Neither shall he be guilty of a less crime who kills another **200]in consequence of such a wilful act as shows him to be an enemy to all mankind in general; as going deliberately, and with an intent to do mischief,(b) upon a horse used to strike, or coolly discharging a gun among a multitude of people.(c) So if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice. And if two or more come together to do an unlawful act against the king’s peace, of which the probable consequence might be bloodshed, as to beat a man, to commit a riot, or to rob a park, and one of them kills a man; it is murder in them all, because of the unlawful act, the malitia præcogitata, or evil intended beforehand.(d)24

Also in many cases where no malice is expressed the law will imply it, as, where a man wilfully poisons another: in such a deliberate act the law presumes malice, though no particular enmity can be proved.(e) And if a man kills another suddenly, without any or without a considerable provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause. No affront by words or gestures only is a sufficient provocation so as to excuse or extenuate such acts of violence as manifestly endanger the life of another.(f) But if the person so provoked had unfortunately killed the other by beating him in such a manner as showed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour as to adjudge it only manslaughter, and not murder.(g) In like manner, if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be guilty of murder.(h)25 And if one intends to do another felony, *[*201and undesignedly kills a man, this is also murder.(i) Thus, if one shoots at A. and misses him, but kills B., this is murder, because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A., and B., against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder.(j) So also if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman; this is murder in the person who gave it.(k) It were endless to go through all the cases of homicide which have been adjudged either expressly or impliedly malicious: these, therefore, may suffice as a specimen; and we may take it for a general rule that all homicide is malicious, and of course amounts to murder, unless where justified by the command or permission of the law, excused on the account of accident or self-preservation, or alleviated into manslaughter by being either the involuntary consequence of some act not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out to the satisfaction of the court and jury, the latter of whom are to decide whether the circumstances alleged are proved to have actually existed, the former how far they extend to take away or mitigate guilt. For all homicide is presumed to be malicious until the contrary appeareth upon evidence.(l)26

The punishment of murder and that of manslaughter was formerly one and the same, both having the benefit of clergy; so that none but unlearned persons, who least knew the guilt of it, were put to death for this enormous crime.(m) But now, by several statutes,(n) the benefit of clergy is taken away from murderers through malice prepense, their abettors, procurers, and counsellors. In atrocious cases it was frequently usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place **202]where the fact was committed: but this was no part of the legal judgment; and the like is still sometimes practised in the case of notorious thieves. This, being quite contrary to the express command of the Mosaical law,(o) seems to have been borrowed from the civil law, which, besides the terror of the example, gives also another reason for this practice, viz., that it is a comfortable sight to the relations and friends of the deceased.(p) But now, in England it is enacted, by statute 25 Geo. II. c. 37, that the judge before whom any person is found guilty of wilful murder shall pronounce sentence immediately after conviction, unless he sees cause to postpone it, and shall, in passing sentence, direct him to be executed on the next day but one, (unless the same shall be Sunday, and then on the Monday following,)27 and that his body be delivered to the surgeons to be dissected and anatomized,(q) and that the judge may direct his body to be afterwards hung in chains,28 but in no wise to be buried without dissection. And during the short but awful interval between sentence and execution the prisoner shall be kept alone, and sustained with only bread and water. But a power is allowed to the judge, upon good and sufficient cause, to respite the execution and relax the other restraints of this act.29

By the Roman law, parricide, or the murder of one’s parents or children, was punished in a much severer manner than any other kind of homicide. After being scourged, the delinquents were sewed up in a leathern sack with a live dog, a cock, a viper, and an ape, and so cast into the sea.(r) Solon, it is true, in his laws, made none against parricide, apprehending it impossible that any one should be guilty of so unnatural a barbarity.(s) And the Persians, according to Herodotus, entertained the same notion when they adjudged all persons who killed their reputed parents to be bastards. And upon some such reason as this we must account for *[*203the omission of an exemplary punishment for this crime in our English laws, which treat it no otherwise than as simple murder, unless the child was also the servant of his parent.(t)

For, though the breach of natural relation is unobserved, yet the breach of civil or ecclesiastical connections, when coupled with murder, denominates it a new offence, no less than a species of treason, called parva proditio, or petit treason, which, however, is nothing else but an aggravated degree of murder;(u) although, on account of the violation of private allegiance, it is stigmatized as an inferior species of treason.(v) And thus, in the antient Gothic constitutions, we find the breach both of natural and civil relations ranked in the same class with crimes against the state and the sovereign.(w)

Petit treason,30 according to the statute 25 Edw. III. c. 2, may happen three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular or regular) his superior, to whom he owes faith and obedience. A servant who kills his master, whom he has left, upon a grudge conceived against him during his service, is guilty of petit treason; for the traitorous intention was hatched while the relation subsisted between them, and this is only an execution of that intention.(x) So, if a wife be divorced a mensa et thoro, still the vinculum matrimonii subsists; and if she kills such divorced husband she is a traitress.(y) And a clergyman is understood to owe canonical obedience to the bishop who ordained him, to him in whose diocese he is beneficed, and also to the metropolitan of such suffragan or diocesan bishop; and, therefore, to kill any of these is petit treason.(z) As to the rest, whatever has been said, or remains to be observed hereafter, with respect to wilful murder, is also applicable to the crime of petit treason, which is no other than murder in *[*204its most odious degree, except that the trial shall be as in cases of high treason, before the improvements therein made by the statutes of William III.(a) But a person indicted of petit treason may be acquitted thereof and found guilty of manslaughter or murder;(b) and in such case it should seem that two witnesses are not necessary, as in case of petit treason they are.31 Which crime is also distinguished from murder in its punishment.

The punishment of petit treason in a man is, to be drawn and hanged, and in a woman to be drawn and burned;(c) the idea of which latter punishment seems to have been handed down to us by the laws of the antient Druids, which condemned a woman to be burned for murdering her husband,(d) and it is now the usual punishment for all sorts of treasons committed by those of the female sex.(e)32 Persons guilty of petit treason were first debarred the benefit of clergy by statute 12 Hen. VII. c. 7, which has been since extended to their aiders abettors, and counsellors, by statute 23 Hen. VIII. c. 1 and 4 & 5 P. and M. c. 4.

CHAPTER XV.

OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

**205]Having in the preceding chapter considered the principal crime or public wrong that can be committed against a private subject, namely, by destroying his life, I proceed now to inquire into such other crimes and misdemeanours as more peculiarly affect the security of his person while living.

Of these some are felonies, and in their nature capital; others are simple misdemeanours, and punishable with a lighter animadversion. Of the felonies, the first is that of mayhem.

1. Mayhem, mayhemium, was in part considered, in the preceding book,(a) as a civil injury; but it is also looked upon in a criminal light by the law, being an atrocious breach of the king’s peace, and an offence tending to deprive him of the aid and assistance of his subjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the use of such of his members as may render him the less able, in fighting, either to defend himself or to annoy his adversary.(b) And, therefore, the cutting off or disabling or weakening a man’s hand or finger, or striking out his eye or foretooth, or depriving him of those parts the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear or nose, or the like, are not held to be mayhems at common law, because they do not weaken but only disfigure him.

**206]By the antient law of England, he that maimed any man whereby he lost any part of his body was sentenced to lose the like part, membrum pro membro;(c) which is still the law in Sweden.(d) But this went afterwards out of use, partly because the law of retaliation, as was formerly shown,(e) is at best an inadequate rule of punishment, and partly because upon a repetition of the offence the punishment could not be repeated. So that, by the common law as it for a long time stood, mayhem was only punishable with fine and imprisonment,(f) unless perhaps the offence of mayhem by castration, which all our old writers held to be felony: “et sequitur aliquando pœna capitalis, aliquandoperpetuum exilium, cum omnium bonorum ademptione.”(g) And this although the mayhem was committed upon the highest provocation.(h)

But subsequent statutes have put the crime and punishment of mayhem more out of doubt. For, first, by statute 5 Hen. IV. c. 5, to remedy a mischief that then prevailed of beating, wounding, or robbing a man and then cutting out his tongue or putting out his eyes to prevent him from being an evidence against them, this offence is declared to be felony, if done of malice prepense; that is, as Sir Edward Coke(i) explains it, voluntarily and of set purpose, though done upon a sudden occasion. Next in order of time is the statute 37 Hen. VIII. c. 6, which directs that if a man shall maliciously and unlawfully cut off the ear of any of the *[*207king’s subjects, he shall not only forfeit treble damages to the party grieved, to be recovered by action of trespass at common law as a civil satisfaction, but also 10l. by way of fine to the king, which was his criminal amercement. The last statute, but by far the most severe and effectual of all, is that of 22 & 23 Car. II. c. 1, called the Coventry act, being occasioned by an assault on Sir John Coventry in the street, and slitting his nose, in revenge (as was supposed) for some obnoxious words uttered by him in parliament. By this statute it is enacted that if any person shall of malice aforethought and by lying in wait unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member, of any other person, with intent to maim or disfigure him, such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy.(k)1

Thus much for the felony of mayhem: to which may be added the offence of wilfully and maliciously shooting at any person in any dwelling-house or other place; an offence of which the probable consequence may be either killing or maiming him. This, though no such evil consequence **208]ensues, is made felony without benefit of clergy by statute 9 Geo. I. c. 22; and thereupon one Arnold was convicted in 1723 for shooting at lord Onslow, but, being half a madman, was never executed, but confined in prison, where he died about thirty years after.2

II. The second offence, more immediately affecting the personal security of individuals, relates to the female part of his majesty’s subjects; being that of their forcible abduction and marriage; which is vulgarly called stealing an heiress. For, by statute 3 Hen. VII. c. 2, it is enacted that if any person shall for lucre take any woman, being maid, widow, or wife, and having substance either in goods or lands, being heir-apparent to her ancestors, contrary to her will, and afterwards she be married to such misdoer, or by his consent to another, or defiled; such person, his procurers and abettors, and such as knowingly receive such woman, shall be deemed principal felons; and, by statute 30 Eliz. c. 9, the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessories before the fact.3

In the construction of this statute it hath been determined,—1. That the indictment must allege that the taking was for lucre; for such are the words of the statute.(l) 2. In order to show this, it must appear that the woman has substance, either real or personal, or is an heir-apparent.(m) 3. It must appear that she was taken away against her will. 4. It must also appear that she was afterwards married or defiled. And though possibly the marriage or defilement might be by her subsequent consent, being won thereto by flatteries after the taking, yet this is felony, if the first taking were against her will;(n)4 and so vice versa, if the woman be originally taken away by her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may from that time as properly *[*209be said to be taken against her will as if she never had given any consent at all; for till the force was put upon her she was in her own power.(o) It is held that a woman thus taken away and married may be sworn and give evidence against the offender, though he is her husband de facto, contrary to the general rule of law, because he is no husband de jure, in case the actual marriage was also against her will.(p) In cases indeed where the actual marriage is good by the consent of the inveigled woman obtained after her forcible abduction, Sir Matthew Hale seems to question how far her evidence should be allowed; but other authorities(q) seem to agree that it should even then be admitted; esteeming it absurd that the offender should thus take advantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, should (by a forced construction of law) be made use of to stop the mouth of the most material witness against him.5

An inferior degree of the same kind of offence, but not attended with force, is punished by the statutes 4 & 5 Ph. and Mar. c. 8, which enacts that if any person above the age of fourteen unlawfully shall convey or take away any woman child unmarried, (which is held(r) to extend to bastards as well as to legitimate children,) within the age of sixteen years, from the possession and against the will of the father, mother, guardians, or governors, he shall be imprisoned two years, or fined at the discretion of the justices; and if he deflowers such maid or woman child, or without the consent of parents contracts matrimony with her, he shall be imprisoned five years, or fined at the discretion of the justices, and she shall forfeit all her lands to her next of kin during the life of her said husband.6 So that as these stolen marriages, under the age of sixteen, were usually upon mercenary views, this act, besides punishing the seducer, wisely removed the temptation. But this latter part of the act is now rendered **210]almost useless by provisions of a very different kind, which make the marriage totally void,(s) in the statute 26 Geo. II. c. 33.7

III. A third offence, against the female part also of his majesty’s subjects, but attended with greater aggravation than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will. This, by the Jewish law,(t) was punished with death in case the damsel was betrothed to another man; and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel’s father, and she was to be the wife of the ravisher all the days of his life, without that power of divorce which was in general permitted by the Mosaic law.

The civil law(u) punishes the crime of ravishment with death and confiscation of goods; under which it includes both the offence of forcible abduction, or taking away a woman from her friends, of which we last spoke; and also the present offence of forcibly dishonouring them; either of which without the other is in that law sufficient to constitute a capital crime. Also, the stealing away a woman from her parents or guardians, and debauching her, is equally penal by the emperor’s edict, whether she consent or is forced: “sive volentibus, sive nolentibus mulieribus, tale facinus fuerit perpetratum.” And this, in order to take away from women every opportunity of offending in this way; whom the Roman law supposes never to go astray without the seduction and art of the other sex: and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the women. “Si enim ipsi raptores metu, vel atrocitate pœnæ, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur; quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis, qui meditatur rapinam, inducitur. **211]Nisi etenim eam solicitaverit, nisi odiosis artibus circumvenerit, non faciet eam velle in tantum dedecus sese prodere.” But our English law does not entertain quite such sublime ideas of the honour of either sex as to lay the blame of a mutual fault upon one of the transgressors only; and therefore makes it a necessary ingredient in the crime of rape that it must be against the woman’s will.

Rape was punished by the Saxon laws, particularly those of king Athelstan,(w) with death; which was also agreeable to the old Gothic or Scandinavian constitution.(x) But this was afterwards thought too hard; and in its stead another severe but not capital punishment was inflicted by William the Conqueror, viz., castration and loss of eyes;(y) which continued till after Bracton wrote, in the reign of Henry the Third. But, in order to prevent malicious accusations, it was then the law (and, it seems, still continues to be so in appeals of rape)(z) that the woman should immediately after, “dum recens fuerit maleficium,” go to the next town, and there make discovery to some credible person of the injury she has suffered, and afterwards should acquaint the high constable of the hundred, the coroners, and the sheriff with the outrage.(a) This seems to correspond in some degree with the laws of Scotland and Aragon,(b) which require that complaint must be made within twenty-four hours; though afterwards, by statute Westm. 1, c. 13, the time of limitation in England was extended to forty days. At present there is no time of limitation fixed; for as it is usually now punished by indictment at the suit of the king, the maxim of law takes place that nullum tempus occurrit regi; but the jury will rarely give credit to a stale complaint. During the former period also it was held for law(c) that the woman (by consent of the judge and her parents) might redeem the offender from the execution of his sentence by accepting him for her husband, if he also was willing to agree to the exchange, but not otherwise.

*[*212In the 3 Edw. I., by the statute Westm. 1, c. 13, the punishment of rape was much mitigated; the offence itself of ravishing a damsel within age, (that is, twelve years old,) either with her consent or without, or of any other woman against her will, being reduced to a trespass, if not prosecuted by appeal within forty days, and subjecting the offender only to two years’ imprisonment and a fine at the king’s will. But, this lenity being productive of the most terrible consequences, it was in ten years afterwards, 13 Edw. I., found necessary to make the offence of forcible rape felony, by statute Westm. 2, c. 34. And by statute 18 Eliz. c. 7, it is made felony without benefit of clergy; as is also the abominable wickedness of carnally knowing and abusing any woman child under the age of ten years; in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion. Sir Matthew Hale is indeed of opinion that such profligate actions committed on an infant under the age of twelve years, the age of female discretion by the common law, either with or without consent, amount to rape and felony, as well since as before the statute of queen Elizabeth;(d) but that law has in general been held only to extend to infants under ten, though it should seem that damsels between ten and twelve are still under the protection of the statute Westm. 1, the law with respect to their seduction not having been altered by either of the subsequent statutes.8

A male infant under the age of fourteen years is presumed by law incapable to commit a rape, and therefore, it seems, cannot be found guilty of it. For though in other felonies malitia supplia ætatem, as has in some cases been shown, yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind.(e)9

The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind;(f) not allowing *[*213any punishment for violating the chastity of her who hath indeed no chastity at all, or at least hath no regard to it. But the law of England does not judge so hardly of offenders as to cut off all opportunity of retreat even from common strumpets, and to treat them as never capable of amendment. It therefore holds it to be felony to force even a concubine or harlot; because the woman may have forsaken that unlawful course of life:(g) for, as Bracton well observes,(h) “licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiæ ejus consentire noluit.”

As to the material facts requisite to be given in evidence and proved upon an indictment of rape, they are of such a nature that, though necessary to be known and settled for the conviction of the guilty and preservation of the innocent, and therefore are to be found in such criminal treatises as discourse of these matters in detail, yet they are highly improper to be publicly discussed, except only in a court of justice. I shall therefore merely add upon this head a few remarks from Sir Matthew Hale, with regard to the competency and credibility of witnesses; which may, salvo pudore, be considered.

And, first, the party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance: if the witness be of good fame; if she presently discovered the offence and made search for the offender; if the party accused fled for it; these, and the like, are concurring circumstances which give greater probability to her evidence. But, on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place, where the fact was alleged to be committed, was where it was possible she might have been heard, and she made no outcry; these and the **214]like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned.10

Moreover, if the rape be charged to be committed on an infant under twelve years of age, she may still be a competent witness if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie.11 Nay, though she hath not, it is thought by Sir Matthew Hale(i) that she ought to be heard without oath, to give the court information; and others have held that what the child told her mother or other relations may be 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, Geo. 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.

*[*215“It is true,” says this learned judge,(j) “that rape is a most 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 over-hastily 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. It will be more eligible to imitate, in this 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 Christianos non nominandum.”(k) A taciturnity observed likewise by the edict of Constantius and Constans:(l) “ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura *[*216gladio ultore, ut exquisitis pœnis 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 a universal, not merely a provincial, precept. And our antient law in some degree imitated this punishment, by commanding such miscreants to be burned to death,(n) though Fleta(o) says they should be buried alive; either of which punishments was indifferently used for this crime among the antient 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 pœna plectantur.(q)

These are all the felonious offences more immediately against the personal security of the subject. The inferior offences or misdemeanours 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 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) as in case of an assault with an intent to murder, or with an intent to commit either of the **217]crimes last spoken of; 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.12

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. 3,13 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 præmunire.(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 **218]in the ecclesiastical court, first pro correctione et salute animæ, 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 because poverty is generally esteemed by the moralists the best medicine pro salute animæ.

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 volume,(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 præmunire and incapacity to hold any office, without any possibility of pardon.(y) And we may also add that, by statute 43 Eliz. c. 13,14 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.(z) 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 misdemeanours whatsoever of a notoriously evil example, may be indicted at the suit of the king.

*[*219(d) 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 plagiarii, was punished with 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.15 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 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.16 And thus much for offences that more immediately affect the persons of individuals.

CHAPTER XVI.

OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.

**220]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. 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 reason the civil law(a) punishes with death such as maliciously set fire to houses in towns and contiguous to others, but is more merciful to such as only fire a cottage or house standing by itself.

**221]Our English law also distinguishes with much accuracy upon this crime. And therefore we will inquire, first, what 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.

1. Not only the bare dwelling-house, but all out-houses that are parcel thereof, though not contiguous thereto, nor 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 antiently likewise accounted arson.(d)1 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 wilfully setting fire to one’s own house, provided one’s neighbour’s house is thereby also burned; 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 misdemeanour, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour.(f)2 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)3

*[*2222. As to what shall be said to be a burning, 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, 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.4 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.(i) But, by statute 6 Anne, c. 31, any servant negligently setting fire to a house or outhouses shall forfeit 100l. 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.”(k)5

3. The punishment of arson was death by our antient Saxon laws.(l) And in the reign of Edward the First, this sentence was executed by a kind of lex talionis; for the incendiaries were burned 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 21 Hen. VIII. c. 1, but that statute was repealed by 1 Edw. 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 the statute 4 & 5 P. and M. c. 4, **223]which expressly denied it to the accessory before the fact;(o) though now it is expressly denied to the principal in all cases within the statute 9 Geo. I. c. 22.

II. Burglary, or nocturnal housebreaking, burgi latrocinium, which by our antient 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.6 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 antient Rome, as expressed in the words of Tully:(q) “quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?” For this reason, no outward doors can, in general, be broken open to execute any civil process; though, in criminal causes, 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)

*[*224The definition of a burglar, as given us by Sir Edward Coke,(s) is “he that by night breaketh and entereth into a 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 daytime 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, antiently the day was accounted to begin only at sunrising and to end immediately upon sunset; but the better opinion seems to be that if there be daylight or crepusculum enough, begun or left, to discern a man’s face withal, it is no burglary.(u) But this does not extend to moonlight, for then many midnight burglaries would go unpunished; and, besides, the malignity of the offence does not so properly arise from its being done in the dark as at the dead of night, when all the creation, except beasts of prey, are at rest; when sleep has disarmed the owner and rendered his castle defenceless.7

2. As to the place. It must be, according to Sir Edward Coke’s definition, in a mansion-house; and therefore, to account for the reason why breaking open a church is burglary, as it undoubtedly is, he quaintly observes that it is domus mansionalis Dei.(v) But it does not seem absolutely necessary that it should in all cases be a mansion-house,8 for it may also be committed by breaking the gates or walls of a town in the night;(w) though that, perhaps, Sir Edward Coke would have called the mansion-house of the garrison or corporation. Spelman defines burglary to be “nocturna diruptio alicujus **225]habitaculi, vel ecclesiæ, etiam murorum portarumve burgi, ad feloniam perpetrandam.” And therefore we may safely conclude that the requisite of its being domus mansionalis is only in the burglary of a private house, which is the most frequent, and in which it is indispensably necessary, to form its guilt, that it must be in a mansion or dwelling-house. For no distant barn, warehouse, or the like are under the same privileges, nor looked upon as a man’s castle of defence; nor is a breaking open of houses wherein no man resides, and which therefore for the time-being are not mansion-houses, attended with the same circumstances of midnight terror. A house, however, wherein a man sometimes resides, and which the owner hath only left for a short season, animo revertendi, is the object of burglary, though no one be in it at the time of the fact committed.(x) And if the barn, stable, or warehouse be parcel of the mansion-house, and within the same common fence,(y) though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or home-stall.(z) A chamber in a college or an inn of court, where each inhabitant hath a distinct property, is, to all other purposes as well as this, the mansion-house of the owner.(a) So also is a room or lodging in any private house the mansion for the time-being of the lodger, if the owner doth not himself dwell in the house, or if he and the lodger enter by different outward doors. But if the owner himself lies in the house, and hath but one outward door, at which he and his lodgers enter, such lodgers seem only to be inmates and all their apartments to be parcel of the one dwelling-house of the owner.(b) Thus, too, the house of a corporation inhabited in separate apartments by the officers of the body corporate is the mansion-house of the corporation, and not of the respective officers.(c) But if I hire a shop, parcel of another man’s house, and work or trade in it, but never lie there, it is no dwelling-house, nor can burglary be committed therein, for by the lease *[*226it is severed from the rest of the house, and therefore is not the dwelling-house of him who occupies the other part; neither can I be said to dwell therein when I never lie there.(d) Neither can burglary be committed in a tent or booth erected in a market or fair, though the owner may lodge therein;(e) for the law regards thus highly nothing but permanent edifices; a house or church, the wall or gate of a town; and though it may be the choice of the owner to lodge in so fragile a tenement, yet his lodging there no more makes it burglary to break it open than it would be to uncover a tilted wagon in the same circumstances.

3. As to the manner of committing burglary: there must be both a breaking and an entry to complete it. But they need not be both done at once; for if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars.(f) There must in general be an actual breaking; not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass,) but a substantial and forcible irruption. As at least by breaking or taking out the glass of, or otherwise opening, a window; picking a lock or opening it with a key; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner has provided.9 But if a person leaves his doors or windows open, it is his own folly and negligence, and if a man enters therein it is no burglary; yet, if he afterwards unlocks an inner or chamber door, it is so.(g)10 But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit.(h) So, also, to knock at the door, and upon opening it to rush in with a felonious intent; or, under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, though there was **227]no actual breaking; for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process.(i) And so, if a servant opens and enters his master’s chamber-door with a felonious design, or if any other person lodging in the same house or in a public inn opens and enters another’s door with such evil intent, it is burglary. Nay, if the servant conspires with a robber and lets him into the house by night, this is burglary in both;(k) for the servant is doing an unlawful act, and the opportunity afforded him of doing it with greater ease rather aggravates than extenuates the guilt. As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient; as, to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one’s money, are all of them burglarious entries.(l)11 The entry may be before the breaking, as well as after: for, by statute 12 Anne, c. 7, if a person enters into the dwelling-house of another without breaking in, either by day or by night, with intent to commit felony, or being in such a house shall commit any felony, and shall in the night break out of the same, this is declared to be burglary, there having before been different opinions concerning it, lord Bacon(m) holding the affirmative and Sir Matthew Hale(n) the negative. But it is universally agreed that there must be both a breaking, either in fact or by implication, and also an entry, in order to complete the burglary.12

4. As to the intent; it is clear that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. And it is the same whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge. And therefore such a breach and entry of a house as has been before described, by night, with intent to commit a robbery, *[*228a murder, a rape, or any other felony, is burglary; whether the thing be actually perpetrated or not. Nor does it make any difference whether the offence were felony at common law, or only created so by statute; since that statute which makes an offence felony gives it incidentally all the properties of a felony at common law.(o)13

Thus much for the nature of burglary, which is a felony at common law but within the benefit of clergy. The statutes, however, of 1 Edw. VI. c. 12, and 18 Eliz. c. 7, take away clergy from the principals, and that of 3 & 4 W. and M. c. 9, from all abettors and accessories before the fact.(p) And, in like manner, the law of Athens, which punished no simple theft with death, made burglary a capital crime.(q)14

CHAPTER XVII.

OF OFFENCES AGAINST PRIVATE PROPERTY.

**229]The next and last species of offences against private subjects are such as more immediately affect their property. Of which there are two which are attended with a breach of the peace; larceny and malicious mischief; and one that is equally injurious to the rights of property, but attended with no act of violence, which is the crime of forgery. Of these three in their order.

I. Larceny, or theft, by contraction for latrociny, latrocinium, is distin guished by the law into two sorts: the one called simple larceny, or plain thef unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one’s house or person.1

And, first, of simple larceny, which, when it is the stealing of goods above the value of twelve-pence, is called grand larceny; when of goods to that value, or under, is petit larceny; offences which are considerably distinguished in their punishment, but not otherwise. I shall therefore first consider the nature of simple larceny in general, and then shall observe the different degrees of punishment inflicted on its two several branches.

Simple larceny, then, is “the felonious taking and carrying away of the personal goods of another.” This **230]offence certainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far such an offence can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual in the occupation of what he has seized to his present use seems to be the only offence of this kind incident to such a state. But, unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen,(a) any violation of that property is subject to be punished by the laws of society; though how far that punishment shall extend is matter of considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition.

1. It must be a taking.2 This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larceny. As if A. lends B. a horse, and he rides away with him; or if I send goods by a carrier, and he carries them away; these are no larcenies.(b) But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed and afterwards takes away the whole, these are larcenies;(c) for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery shall not, of course, be intended to arise from a felonious design, since that may happen from a variety of other accidents. Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But, by statute 33 Hen. VI. c. 1, the servants of persons deceased, accused of embezzling their masters’ goods, may, by writ out of chancery (issued by the advice of **231]the chief justices and chief baron, or any two of them) and proclamation made thereupon, be summoned to appear personally in the court of king’s bench to answer their masters’ executors in any civil suit for such goods, and shall, on default of appearance, be attainted of felony. And, by statute 21 Hen. VIII. c. 7, if any servant embezzles his master’s goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old.3 But if he had not the possession, but only the care and oversight, of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them is felony at common law.(d) So if a guest robs his inn or tavern of a piece of plate, it is larceny; for he hath not the possession delivered to him, but merely the use;(e) and so it is declared to be by statutes 3 & 4 W. and M. c. 9 if a lodger runs away with the goods from his ready-furnished lodgings.4 Under some circumstances also a man may be guilty of felony in taking his own goods; as if he steals them from a pawnbroker, or any one to whom he hath delivered and intrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with an intent to charge the hundred with the loss according to the statute of Winchester.(f)

2. There must not only be a taking, but a carrying away;5cepit et asportavit was the old law-Latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation or carrying away. As, if a man be leading another’s horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down-stairs; these have been adjudged sufficient carryings away to constitute a larceny.(g) Or if a thief, intending to steal plate, takes it out of a chest in which it was and lays it down upon the floor, but is surprised before he can make his escape with it, this is larceny.(h)

**232]3. This taking and carrying away must also be felonious; that is, done animo furandi: or, as the civil law expresses it, lucri causa.(i)6 This requisite, besides excusing those who labour under incapacities of mind or will, (of whom we spoke sufficiently at the entrance of this book,)(k) indemnifies also mere trespassers and other petty offenders. As, if a servant takes his master’s horse without his knowledge and brings him home again; if a neighbour takes another’s plough that is left in the field and uses it upon his own land and then returns it; if, under colour of arrear of rent where none is due, I distrain another’s cattle or seize them; all these are misdemeanours and trespasses, but no felonies.(l) The ordinary discovery of a felonious intent is where the party doth it clandestinely, or, being charged with the fact, denies it. But this is by no means the only criterion of criminality; for in cases that may amount to larceny the variety of circumstances is so great and the complications thereof so mingled that it is impossible to recount all those which may evidence a felonious intent or animum furandi; wherefore they must be left to the due and attentive consideration of the court and jury.

4. This felonious taking and carrying away must be of the personal goods of another; for if they are things real, or savour of the realty, larceny at the common law cannot be committed of them. Lands, tenements, and hereditaments (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be committed, by the rules of the common law, but the severance of them was, and in many things is still, merely a trespass, which depended on a subtilty in the legal notions of our ancestors. These things were parcel of the real estate, and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immovable.(m) And if they were **233]severed by violence, so as to be changed into movables, and at the same time by one and the same continued act carried off by the person who severed them, they could never be said to be taken from the proprietor in this their newly-acquired state of mobility, (which is essential to the nature of larceny,) being never, as such, in the actual or constructive possession of any one but of him who committed the trespass. He could not in strictness be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs them at one time, whereby the trespass is completed, and they are converted into personal chattels in the constructive possession of him on whose soil they are left or laid, and come again at another time, when they are so turned into personalty, and takes them away, it is larceny; and so it is if the owner or any one else has severed them.(n) And now, by the statute 4 Geo. II. c. 42, to steal or rip, cut or break, with intent to steal, any lead, or iron bar, rail, gate, or palisado fixed to a dwelling-house or out-house, or in any court or garden thereunto belonging, or to any other building, is made felony, liable to transportation for seven years;7 and to steal, damage, or destroy underwood or hedges, and the like,8 to rob orchards or gardens of fruit growing therein,9 to steal or otherwise destroy any turnips, potatoes, cabbages, parsnips, peas, or carrots, or the roots of madder when growing, are(o) punished criminally10 by whipping, small fines, imprisonment, and satisfaction to the party wronged, according to the nature of the offence. Moreover, the stealing by night of any trees, or of any roots, shrubs, or plants of the value of 5s., is, by statute 6 Geo. III. c. 36, made felony in the principals, aiders, and abettors, and in the purchasers thereof knowing the same to be stolen: and, by statutes 6 Geo. III. c. 48 and 13 Geo. III. c. 33, the stealing of any timber-trees therein specified,(p) and of any root, **234]shrub, or plant, by day or night, is liable to pecuniary penalties for the two first offences, and for the third is constituted a felony liable to transportation for seven years.11 Stealing ore out of mines is also no larceny, upon the same principle of adherence to the freehold, with an exception only to mines of black lead, the stealing of ore out of which, or entering the same with intent to steal, is felony, punishable with imprisonment and whipping, or transportation not exceeding seven years; and to escape from such imprisonment or return from such transportation is felony without benefit of clergy, by statute 25 Geo. II. c. 10.12 Upon nearly the same principle the stealing of writings relating to a real estate is no felony, but a trespass;(q) because they concern the land, or (according to our technical language) savour of the realty, and are considered as part of it by the law, so that they descend to the heir, together with the land which they concern.13(r)

Bonds, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larceny might be committed, being of no intrinsic value,(s) and not importing any property in possession of the person from whom they are taken. But, by the statute 2 Geo. II. c. 25, they are now put upon the same footing, with respect to larcenies, as the money they were meant to secure.14 By statute 15 Geo. II. c. 13, officers or servants of the bank of England secreting or embezzling any note, bill, warrant, bond, deed, security, money, or effects intrusted with them or with the company, are guilty of felony without benefit of clergy. The same is enacted by statute 24 Geo. II. c. 11 with respect to officers and servants of the South-Sea Company. And, by statute 7 Geo. III. c. 50, if any officer or servant of the post-office shall secrete, embezzle, or destroy any letter or packet containing any banknote or other valuable paper particularly specified in the act, or shall steal the same out of any letter or *[*235packet, he shall be guilty of felony without benefit of clergy. Or, if he shall destroy any letter or packet with which he has received money for the postage, or shall advance the rate of postage on any letter or packet sent by the post and shall secrete the money received by such advancement, he shall be guilty of single felony.15 Larceny also could not at common law be committed of treasure-trove or wreck till seized by the king or him who hath the franchise; for till such seizure no one hath a determinate property therein. But, by statute 26 Geo. II. c. 19, plundering or stealing from any ship in distress (whether wreck or no wreck) is felony without benefit of clergy; in like manner as, by the civil law,(s) this inhumanity is punished in the same degree as the most atrocious theft.16

Larceny also cannot be committed of such animals in which there is no property either absolute or qualified; as of beasts that are feræ naturæ and unreclaimed, such as deer, hares, and coneys in a forest, chase, or warren; fish in an open river or pond; or wild fowls at their natural liberty.(t) But if they are reclaimed or confined and may serve for food, it is otherwise, even at common law; for of deer so enclosed in a park that they may be taken a pleasure, fish in a trunk, and pheasants and partridges in a mew, larceny may be committed.(u) And now, by statute 9 Geo. I. c. 22, to hunt, wound, kill, or steal any deer, to rob a warren, or to steal fish from a river or pond, (being in these cases armed and disguised,) also to hunt, wound, kill, or steal any deer, in the king’s forests or chases enclosed, or in any other enclosed place where deer have been usually kept, or by gift or promise of reward to procure any person to join them in such unlawful act; all these are felonies without benefit of clergy.17 And the statute 16 Geo. III. c. 30 enacts that every unauthorized person, his aiders and abettors, who shall course, hunt, shoot at, or otherwise attempt to kill, wound, or destroy any red or fallow deer in any forest, chase, purlieu, or antient walk, or in any enclosed park, paddock, wood, or other ground **236]where deer are usually kept, shall forfeit the sum of 20l., or for every deer actually killed, wounded, destroyed, taken in any toil or snare, or carried away, the sum of 30l., or double those sums in case the offender be a keeper; and upon a second offence (whether of the same or a different species,) shall be guilty of felony, and transportable for seven years. Which latter punishment is likewise inflicted on all persons armed with offensive weapons who shall come into such places with an intent to commit any of the said offences, and shall there unlawfully beat or wound any of the keepers in the execution of their offices, or shall attempt to rescue any person from their custody. Also, by statute 5 Geo. III. c. 14, the penalty of transportation for seven years is inflicted on persons stealing or taking fish in any water within a park, paddock, garden, orchard, or yard, and on the receivers, aiders, and abettors; and the like punishment, or whipping, fine, or imprisonment, is provided for the taking or killing of coneys(v) by night in open warrens; and a forfeiture of five pounds to the owner of the fishery is made payable by persons taking or destroying (or attempting so to do) any fish in any river or other water within any enclosed ground, being private property.18 Stealing hawks, in disobedience to the rules prescribed by the statute 37 Edw. III. c. 19, is also felony.(w)19 It is also said(x) that if swans be lawfully marked it is felony to steal then; though at large in a public river; and that it is likewise felony to steal them, though unmarked, if in any private river or pond; otherwise it is only a trespass. But of all valuable domestic animals, as horses and other beasts of draught, and of all animals domitæ naturæ, which serve for food, as neat or other cattle, swine, poultry, and the like, and of their fruit or produce, taken from them while living, as milk or wool,(y) larceny may be committed; and also of the flesh of such as are either domitæ or feræ naturæ, when killed.(z)20 **[**235As to those animals which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein and maintain a civil action for the loss of them,(a) yet they are not of such estimation as that the crime of stealing them amounts to larceny.(b) But, by statute 10 Geo. III. c. 18, very high pecuniary penalties, or a long imprisonment and whipping in their stead, may be inflicted by two justices of the peace (with a very extraordinary mode of appeal to the quarter sessions) on such as steal, or knowingly harbour a stolen dog, or have in their custody the skin of a dog that has been stolen.(c)21

Notwithstanding, however, that no larceny can be committed unless there be some property in the thing taken, and an owner, yet, if the owner be unknown, provided there be a property, it is larceny to steal it, and an indictment will lie, for the goods of a person unknown.(d) In like manner as among the Romans the lex Hostilia de furtis provided that a prosecution for theft might be carried on without the intervention of the owner.(e) This is the case of stealing a shroud out of a grave; which is the property of those, whoever they were, that buried the deceased; but stealing the corpse itself, which has no owner, (though a matter of great indecency,) is no felony unless some of the grave-clothes be stolen with it.(f) Very different from the law of the Franks, which seems to have respected both as equal offences, when it directed that a person who had dug a corpse out of the ground in order to strip it should be banished from society, and no one suffered to relieve his wants till the relations of the deceased consented to his readmission.(g)

Having thus considered the general nature of simple larceny, I come next to treat of its punishment. Theft, by the Jewish law, was only punished with a pecuniary fine, and satisfaction to the party injured.(h) And in the civil law ****236]till some very late constitutions, we never find the punishment capital. The laws of Draco, at Athens, punished it with death; but his laws were said to be written in blood: and Solon afterwards changed the penalty to a pecuniary mulct. And so the Attic laws in general continued,(h) except that once, in a time of dearth, it was made capital to break into a garden and steal figs; but this law, and the informers against the offence, grew so odious that from them all malicious informers were styled sycophants; a name which we have much perverted from its original meaning. From these examples, as well as the reason of the thing, many learned and scrupulous men have questioned the propriety, if not lawfulness, of inflicting capital punishment for simple theft.(i) And certainly the natural punishment for injuries to property seems to be the loss of the offender’s own property; which ought to be universally the case, were all men’s fortunes equal. But as those who have no property themselves are generally the most ready to attack the property of others, it has been found necessary instead of a pecuniary to substitute a corporal punishment; yet how far this corporal punishment ought to extend is what has occasioned the doubt. Sir Thomas More,(j) and the marquis Beccaria,(k) at the distance of more than two centuries from each other, have very sensibly proposed that kind of corporal punishment which approaches the nearest to a pecuniary satisfaction, viz., a temporary imprisonment, with an obligation to labour, first for the party robbed, and afterwards for the public, in works of the most slavish kind; in order to oblige the offender to repair, by his industry and diligence, the depredations he has committed upon private property and public order. But, notwithstanding **237]all the remonstrances of speculative politicians and moralists, the punishment of theft still continues, throughout the greatest part of Europe, to be capital; and Puffendorf,(l) together with Sir Matthew Hale,(m) are of opinion that this must always be referred to the prudence of the legislature, who are to judge, say they, when crimes are become so enormous as to require such sanguinary restrictions.(n) Yet both these writers agree that such punishment should be cautiously inflicted, and never without the utmost necessity.

Our antient Saxon laws nominally punished theft with death, if above the value of twelvepence; but the criminal was permitted to redeem his life by a pecuniary ransom; as among their ancestors, the Germans, by a stated number of cattle.(o) But in the ninth year of Henry the First this power of redemption was taken away, and all persons guilty of larceny above the value of twelvepence were directed to be hanged; which law continues in force to this day.(p) For though the inferior species of theft or petit larceny is only punished by imprisonment or whipping at common law,(q) or, by statute 4 Geo. I. c. 11, may be extended to transportation for seven years, as is also expressly directed in the case of the plate-glass company,(r) yet the punishment of grand larceny, or the stealing above the value of twelvepence, (which sum was the standard in the time of king Athelstan, eight hundred years ago,) is at common law regularly death. Which, considering the great intermediate alteration(s) in the price or denomination of money, is undoubtedly a very rigorous constitution, and made Sir Henry Spelman (above a century since, when money was at twice its present rate) complain that, while every thing else was risen in its nominal value and become dearer, the life of man had continually grown *[*238cheaper.(t) It is true that the mercy of juries will often make them strain a point and bring in larceny to be under the value of twelvepence when it is really of much greater value; but this, though evidently justifiable and proper when it only reduces the present nominal value of money to the antient standard,(u) is otherwise a kind of pious perjury, and does not at all excuse our common law in this respect from the imputation of severity, but rather strongly confesses the charge. It is likewise true, that by the merciful extensions of the benefit of clergy by our modern statute law, a person who commits a simple larceny to the value of thirteenpence or thirteen hundred pounds, though guilty of a capital offence, shall be excused the pains of death; but this is only for the first offence. And in many cases of simple larceny the benefit of clergy is taken away by statute; as for horse-stealing in the principals and accessories both before and after the fact;(w) theft by great and notorious thieves in Northumberland and Cumberland,(x) taking woollen cloth from off the tenters,(y) or linens, fustians, calicoes, or cotton goods from the place of manufacture,(z)22 (which extends, in the last case, to aiders, assisters, procurers, buyers, and receivers;) feloniously driving away or otherwise stealing one or more sheep or other cattle specified in the acts,23 or killing them with intent to steal the whole or any part of the carcase,(a) or aiding or assisting therein; thefts on navigable rivers above the value of forty shillings,(b) or being present, aiding and assisting, thereat;24 *[*239plundering vessels in distress, or that have suffered shipwreck;(c) stealing letters sent by the post;(d) and also stealing deer, fish, hares, and coneys under the peculiar circumstances mentioned in the Waltham black act.25(e) Which additional severity is owing to the great malice and mischief of the theft in some of these instances; and, in others, the difficulties men would otherwise lie under to preserve those goods which are so easily carried off. Upon which last principle the Roman law punished more severely than other thieves the abigei, or stealers of cattle,(f) and the balnearii, or such as stole the clothes of persons who were washing in the public baths;(g) both which constitutions seem to be borrowed from the laws of Athens.(h) And so too the antient Goths punished with unrelenting severity thefts of cattle, or corn that was reaped and left in the field; such kind of property (which no human industry can sufficiently guard) being esteemed under the peculiar custody of heaven.(i) And thus much for the offence of simple larceny.

Mixed or compound larceny is such as has all the properties of the former, but is accompanied with either one or both of the aggravations of a taking from one’s house or person. First, therefore, of larceny from the house, and then of larceny from the person.

1. Larceny from the house, though it seems (from the considerations mentioned in the preceding chapter)(j) to have a higher degree of guilt than simple larceny, yet it is not at all distinguished from the other at common law,(k) unless where it is accompanied with the circumstance of breaking the house by night, and then we have seen that it falls under another description, viz., that of burglary. But now, by several acts of parliament, (the history of which is very ingeniously deduced by a learned modern writer,(l) who hath shown them to have gradually arisen from our **240]improvements in trade and opulence,) the benefit of clergy is taken from larcenies committed in a house in almost every instance, except that larceny of the stock or utensils of the plate-glass company from any of their houses, &c. is made only a single felony, and liable to transportation for seven years.(m) The multiplicity of the general acts is apt to create some confusion; but upon comparing them diligently we may collect that the benefit of clergy is denied upon the following domestic aggravations of larceny, viz.: First, in larcenies above the value of twelve-pence, committed—1. In a church or chapel, with or without violence or breaking the same:(n) 2. In a booth or tent in a market or fair, in the daytime or in the night, by violence or breaking the same, the owner or some of his family being therein:(o) 3. By robbing a dwelling-house in the daytime, (which robbing implies a breaking,) any person being therein:(p) 4. In a dwelling-house by day or by night, without breaking the same, any person being therein and put in fear,(q) which amounts in law to a robbery; and in both these last cases the accessory before the fact is also excluded from his clergy.26 Secondly, in larcenies to the value of five shillings, committed—1. By breaking any dwelling-house, or any out-house, shop, or warehouse thereunto belonging, in the daytime, although no person be therein;(r) which also now extends to aiders, abettors, and accessories before the fact:(s) 2. By privately stealing goods, wares, or merchandise, in any shop, warehouse,(t) coach-house, or stable, by day or by night, though the same be not broken open, and though no person be therein;(u)27 which likewise extends to such as assist, hire, or command the offence to be committed. Lastly, in larcenies to the value of forty shillings, in a dwelling-house or its out-houses, although the same be not broken, and whether any person be therein or no, unless committed against their masters by apprentices under the age of fifteen.(v) This also extends to those who aid or assist in the commission of any such offence.28

*[*2412. Larceny from the person is either by privately stealing or by open and violent assault, which is usually called robbery.

The offence of privately stealing from a man’s person, as by picking his pocket or the like privily without his knowledge, was debarred of the benefit of clergy so early as by the statute 8 Eliz. c. 4.29 But then it must be such a larceny as stands in need of the benefit of clergy, viz., of above the value of twelvepence, or else the offender shall not have judgment of death. For the statute creates no new offence, but only prevents the prisoner from praying the benefit of clergy, and leaves him to the regular judgment of the antient law.(w) This severity (for a most severe law it certainly is) seems to be owing to the ease with which such offences are committed, the difficulty of guarding against them, and the boldness with which they were practised (even in the queen’s court and presence) at the time when this statute was made: besides that this is an infringement of property in the manual occupation or corporal possession of the owner which was an offence even in a state of nature. And therefore the saccularii or cutpurses were more severely punished than common thieves by the Roman and Athenian laws.(x)30

Open and violent larceny from the person, or robbery, the rapina of the civilians, is the felonious and forcible taking from the person of another of goods or money to any value by violence or putting him in fear.(y) 1. There must be a taking, otherwise it is no robbery. A mere attempt to rob was indeed held to be felony so late as Henry the Fourth’s time,(z) but afterwards it was taken to be only a misdemeanour, and punishable with fine and imprisonment, till the **242]statute 7 Geo. II. c. 21, which makes it a felony (transportable for seven years) unlawfully and maliciously to assault another with any offensive weapon or instrument, or by menaces or by other forcible or violent manner to demand any money or goods, with a felonious intent to rob.31 If the thief, having once taken a purse, returns it, still it is a robbery; and so it is whether the taking be strictly from the person of another, or in his presence only; as where a robber by menaces and violence puts a man in fear, and drives away his sheep or his cattle before his face.(a) But if the taking be not either directly from his person or in his presence, it is no robbery.(b) 2. It is immaterial of what value the thing taken is: a penny as well as a pound thus forcibly extorted makes a robbery.(c) 3. Lastly, the taking must be by force or a previous putting in fear, which makes the violation of the person more atrocious than privately stealing; for, according to the maxim of the civil law,(d) “qui vi rapuit, fur improbior esse videtur.” This previous violence or putting in fear is the criterion that distinguishes robbery from other larcenies; for if one privately steals sixpence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent;(e) neither is it capital, as privately stealing, being under the value of twelvepence. Not that it is indeed necessary, though usual, to lay in the indictment that the robbery was committed by putting in fear: it is sufficient if laid to be done by violence.(f) And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed: it is enough that so much force or threatening by word or gesture be used as might create an apprehension of danger, or induce a man to part with his property without or against his consent.(g) Thus, if a man be knocked down without previous warning and stripped of his property while senseless, though strictly he cannot be said to be put in fear, **243]yet this is undoubtedly a robbery. Or, if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence, this is a felonious robbery.(h) So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubted(i) whether the forcing a higgler or other chapman to sell his wares, and giving him the full value of them, amounts to so heinous a crime as robbery.32

This species of larceny is debarred of the benefit of clergy by statute 23 Hen. VIII. c. 1 and other subsequent statutes, not indeed in general, but only when committed in a dwelling-house or in or near the king’s highway. A robbery, therefore, in a distant field, or footpath, was not punished with death,(k) but was open to the benefit of clergy, till the statute 3 & 4 W. and M. c. 9, which takes away clergy from both principals and accessories before the fact, in robbery, wheresoever committed.33

II. Malicious mischief, or damage, is the next species of injury to private property which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another’s loss, which is some, though a weak, excuse, but either out of a spirit of wanton cruelty or black and diabolical revenge. In which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property, of individuals. And therefore any damage arising from this mischievous disposition, though only a trespass at common law, is now by a multitude of statutes made penal in the highest degree. Of these I shall extract the contents in order of time.

And, first, by statute 22 Hen. VIII. c. 11, perversely and maliciously to cut down or destroy the powdike in the fens of Norfolk and Ely is felony.34 And, in like manner, it is, by many special statutes enacted upon the occasions, made felony to destroy the several sea-banks, river-banks, public navigations, and bridges, erected by virtue of those acts of **244]parliament. By statute 43 Eliz. c. 13, (for preventing rapine on the northern borders,) to burn any barn or stack of corn or grain; or to imprison or carry away any subject in order to ransom him, or to make prey or spoil of his person or goods upon deadly feud or otherwise, in the four northern counties of Northumberland, Westmoreland, Cumberland, and Durham, or being accessory before the fact to such carrying away or imprisonment; or to give or take any money or contribution, there called blackmail, to secure such goods from rapine; is felony without benefit of clergy. By statute 22 & 23 Car. II. c. 7, maliciously, unlawfully, and willingly, in the night-time to burn, or cause to be burned or destroyed, any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns,35 or to kill any horses, sheep, or other cattle, is felony; but the offender may make his election to be transported for seven years; and to maim or hurt such horses, sheep, or other cattle is a trespass, for which treble damages shall be recovered.36 By statute 4 & 5 W. and M. c. 23, to burn on any waste, between Candlemas and Midsummer, any grig, ling, heath, furze, goss, or fern is punishable with whipping and confinement in the house of correction. By statute 1 Anne, st. 2, c. 9, captains and mariners belonging to ships and destroying the same, to the prejudice of the owners, (and, by 4 Geo. I. c. 12, to the prejudice of insurers also,) are guilty of felony without benefit of clergy. And by statute 12 Anne, st. 2, c. 18, making any hole in a ship in distress, or stealing her pumps, or aiding or abetting such offence, or wilfully doing any thing tending to the immediate loss of such ship, is felony without benefit of clergy.37 By statute 1 Geo. I. c. 48, maliciously to set on fire any underwood, wood, or coppice is made single felony. By statute 6 Geo. I. c. 23, the wilful and malicious tearing, cutting, spoiling, burning, or defacing of the garments or clothes of any person passing in the streets or highways, with intent so to do, is felony. This was occasioned by the insolence of certain weavers and others, who, upon the introduction of some Indian fashions prejudicial to their own manufactures, made it their practice to deface them, either by open outrage, or by privily cutting, or casting aqua-fortis *[*245in the streets upon such as wore them.38 By statute 9 Geo. I. c. 22,39 commonly called the Waltham black act, occasioned by the devastations committed near Waltham, in Hampshire, by persons in disguise or with their faces blacked, (who seem to have resembled the Roberdsmen, or followers of Robert Hood, that in the reign of Richard the First committed great outrages on the borders of England and Scotland;)(l) by this black act, I say, which has in part been mentioned under the several heads of riots, menaces, mayhem, and larceny,(m) it is further enacted that to set fire to any house, barn, or out-house, (which is extended by statute 9 Geo. III. c. 29 to the malicious and wilful burning or setting fire to all kinds of mills,) or to any hovel, cock, mow, or stack of corn, straw, hay, or wood; or unlawfully or maliciously to break down the head of any fish-pond, whereby the fish shall be lost or destroyed; or, in like manner, to kill, maim, or wound any cattle; or cut down or destroy any trees planted in an avenue, or growing in a garden, orchard, or plantation, for ornament, shelter, or profit; all these malicious acts, or procuring by gift or promise of reward any person to join them therein, are felonies without benefit of clergy; and the hundred shall be chargeable for the damages unless the offender be convicted.40 In like manner, by the Roman law, to cut down trees, and especially vines, was punished in the same degree as robbery.(n) By statutes 6 Geo. II. c. 37, and 10 Geo. II. c. 32, it is also made felony without the benefit of clergy maliciously to cut down any river or sea bank, whereby lands may be overflowed or damaged; or to cut any hop-binds growing in a plantation of hops,41 or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or depth of coal.42 By statute 11 Geo. II. c. 22, to use any violence in order to deter any person from buying corn or grain; to seize any carriage or horse carrying grain or meal to or from any market or seaport; or to use any outrage with such intent; or to scatter, take away, spoil, or damage such grain or meal, is punished **246]for the first offence with imprisonment and public whipping; and the second offence, or destroying any granary where corn is kept for exportation, or taking away or spoiling any grain or meal in such granary, or in any ship, boat, or vessel intended for exportation, is felony, subject to transportation for seven years.43 By statute 28 Geo. II. c. 19, to set fire to any goss, furze, or fern growing in any forest or chase is subject to a fine of five pounds.44 By statutes 6 Geo. III. c. 36 & 48, and 13 Geo. III. c. 33, wilfully to spoil or destroy any timber or other trees, roots, shrubs, or plants is for the two first offences liable to pecuniary penalties; and for the third, if in the daytime, and even for the first, if at night, the offender shall be guilty of felony and liable to transportation for seven years.45 By statute 9 Geo. III. c. 29, wilfully and maliciously to burn or destroy any engine, or other machines therein specified, belonging to any mine,46 or any fences for enclosures pursuant to any act of parliament, is made single felony, and punishable with transportation for seven years, in the offender, his advisers and procurers.47 And, by statute 13 Geo. III. c. 38, the like punishment is inflicted on such as break into any house, &c. belonging to the plate-glass company, with intent to steal, cut, or destroy any of their stock or utensils, or shall wilfully and maliciously cut or destroy the same. And these are the principal punishments of malicious mischief.

III. **247Forgery,48 or the crimen falsi is an offence which was punished by the civil law with deportation or banishment, and sometimes with death.(o) It may with us be defined at common law to be “the fraudulent making or alteration of a writing to the prejudice of another man’s right,” for which the offender may suffer fine, imprisonment, and pillory.49 And also, by a variety of statutes, a more severe punishment is inflicted on the offender in many particular cases, which are so multiplied of late as almost to become general. I shall mention the principal instances.

By statute 5 Eliz. c. 14, to forge or make, or knowingly to publish or give in evidence, any forged deed, court-roll, or will, with intent to affect the right of real property, either freehold or copyhold, is punished by a forfeiture to the party grieved of double costs and damages; by standing in the pillory and having both his ears cut off and his nostrils slit and seared, by forfeiture to the crown of the profits of his lands, and by perpetual imprisonment. For any forgery relating to a term of years, or annuity, bond, obligation, acquittance, release, or discharge of any debt or demand of any personal chattels, the same forfeiture is given to the party grieved; and on the offender is inflicted the pillory, loss of one of his ears, and a year’s imprisonment: the second offence in both cases being felony without benefit of clergy.

Besides this general act, a multitude of others, since the revolution, (when paper-credit was first established,) have inflicted capital punishment on the forging, altering, or uttering as true when forged, of any bank bills or notes, or *[*248other securities;(p)50 of bills of credit issued from the exchequer;(q)51 of South-Sea bonds, &c.;(r) of lottery tickets or orders;(s)52 of army or navy debentures;(t) of East India bonds;(u) of writings under the seal of the London or royal exchange assurance;(w) of the hand of the receiver of the prefines(x) or of the accountant-general, and certain other officers of the court of chancery;(y) of a letter of attorney, or other power to receive or transfer stock or annuities, and on the personating a proprietor thereof to receive or transfer such annuities, stock, or dividends;(z) also on the personating, or procuring to be personated, any seaman or other person entitled to wages or other naval emoluments, or any of his personal representatives; and the taking or procuring to be taken any false oath in order to obtain a probate or letters of administration, in order to receive such payments;53 and the forging or procuring to be forged, and likewise the uttering or publishing as true, of any counterfeited seaman’s will or power;(a)54 to which may be added, though not strictly reducible to this head, the counterfeiting of Mediterranean passes under the hands of the lords of the admiralty, to protect one from the piratical States of Barbary;(b) the forging or imitating of any stamps to defraud the public revenue,(c)55 and the forging of any marriage register or license;(d)56 all which are, by distinct acts of parliament, made felonies without benefit of clergy. By statute 13 Geo. III. c. 52 and 59, forging or counterfeiting any stamp or mark to denote the standard of gold and silver plate, and certain other offences of the like tendency, are punished with transportation for fourteen years.57 By statute 12 Geo. III. c. 48, certain **249]frauds on the stamp-duties therein described, principally by using the same stamps more than once, are made single felony, and liable to transportation for seven years. And the same punishment is inflicted, by statute 13 Geo. III. c. 38,58 on such as counterfeit the common seal of the corporation for manufacturing plate-glass, (thereby erected,) or knowingly demand money of the company by virtue of any writing under such counterfeit seal.

There are also certain other general laws with regard to forgery, of which the first is 2 Geo. II. c. 25, whereby the first offence in forging or procuring to be forged, acting or assisting, therein, or uttering or publishing as true, any forged deed, will, bond, writing obligatory, bill of exchange, promissory note, endorsement, or assignment thereof, or any acquittance or receipt for money or goods, with intention to defraud any person, (or corporation,)(e) is made felony without benefit of clergy. And, by statutes 7 Geo. II. c. 22 and 18 Geo. III. c. 18, it is equally penal to forge or cause to be forged or utter as true a counterfeit acceptance of a bill of exchange, or the number or principal sum of any accountable receipt for any note, bill, or any other security for money, or any warrant or order for the payment of money or delivery of goods.59 So that, I believe, through the number of these general and special provisions, there is now hardly a case possible to be conceived wherein forgery that tends to defraud, **250]whether in the name of a real or fictitious person,(f) is not made a capital crime.60

These are the principal infringements of the rights of property, which were the last species of offences against individuals or private subjects which the method of distribution has led us to consider. We have before examined the nature of all offences against the public or commonwealth; against the king or supreme magistrate, the father and protector of that community; against the universal law of all civilized nations; together with some of the more atrocious offences of publicly pernicious consequence against God and his holy religion. And these several heads comprehend the whole circle of crimes and misdemeanours, with the punishment annexed to each, that are cognizable by the laws of England.61

CHAPTER XVIII.

OF THE MEANS OF PREVENTING OFFENCES.

*[*251We are now arrived at the fifth general branch or head under which I proposed to consider the subject of this book of our commentaries, viz., the means of preventing the commission of crimes and misdemeanours. And really it is an honour, and almost a singular one, to our English laws, that they furnish a title of this sort, since preventive justice is, upon every principle of reason, of humanity, and of sound policy, preferable in all respects to punishing justice,(a) the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances.

This preventive justice consists in obliging those persons whom there is a probable ground to suspect of future misbehaviour to stipulate with and to give full assurance to the public that such offence as is apprehended shall not happen, by finding pledges or securities for keeping the peace, or for their good behaviour. This requisition of sureties has been several times mentioned before as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanours; but there also it must be understood rather as a caution against the repetition of the offence than any immediate pain or punishment. And, indeed, if we consider all human *[*252punishments in a large and extended view, we shall find them all rather calculated to prevent future crimes than to expiate the past; since, as was observed in a former chapter,(b) all punishments inflicted by temporal laws may be classed under three heads: such as tend to the amendment of the offender himself, or to deprive him of any power to do future mischief, or to deter others by his example; all of which conduce to one and the same end of preventing future crimes, whether that can be effected by amendment, disability, or example. But the caution which we speak of at present is such as is intended merely for prevention, without any crime actually committed by the party, but arising only from a probable suspicion that some crime is intended or likely to happen; and consequently it is not meant as any degree of punishment, unless perhaps for a man’s imprudence in giving just ground of apprehension.

By the Saxon constitution, these sureties were always at hand, by means of king Alfred’s wise institution of decennaries or frank pledges, wherein, as has more than once been observed,(c) the whole neighbourhood or tithing of freemen were mutually pledges for each other’s good behaviour. But this great and general security being now fallen into disuse and neglected, there hath succeeded to it the method of making suspected persons find particular and special securities for their future conduct; of which we find mention in the laws of king Edward the Confessor,(d) “tradat fidejussores de pace et legalitate tuenda.” Let us therefore consider, first, what this security is; next, who may take or demand it; and, lastly, how it may be discharged.

1. This security consists in being bound, with one or more securities, in a recognizance or obligation to the king, entered on record, and taken in some court or by some judicial officer; whereby the parties acknowledge themselves to be indebted to the crown in the sum required, (for instance, 100l.,) with condition to be void and of none effect if the **253]party shall appear in court on such a day, and in the mean time shall keep the peace,1 either generally towards the king and all his liege people, or particularly, also, with regard to the person who craves the security. Or, if it be for the good behaviour, then on condition that he shall demean and behave himself well, (or be of good behaviour,) either generally or specially, for the time therein limited, as for one or more years, or for life. This recognizance, if taken by a justice of the peace, must be certified to the next sessions,2 in pursuance of the statute 3 Hen. VII. c. 1; and if the condition of such recognizance be broken by any breach of the peace in the one case, or any misbehaviour in the other, the recognizance becomes forfeited or absolute; and being estreated or extracted (taken out from among the other records) and sent up to the exchequer, the party and his sureties, having now become the king’s absolute debtors, are sued for the several sums in which they are respectively bound.

2. Any justices of the peace, by virtue of their commission, or those who are ex officio conservators of the peace, as was mentioned in a former volume,(e)3 may demand such security according to their own discretion; or it may be granted at the request of any subject, upon due cause shown, provided such demandant be under the king’s protection; for which reason it has been formerly doubted whether Jews, pagans, or persons convicted of a præmunire were entitled thereto.(f) Or, if the justice is averse to act, it may be granted by a mandatory writ, called a supplicavit, issuing out of the court of king’s bench or chancery; which will compel the justice to act as a ministerial and not as a judicial officer; and he must make a return to such writ, specifying his compliance, under his hand and seal.(g) But this writ is seldom used; for, when application is made to the superior courts, they usually take the recognizances there, under the directions of the statute 21 Jac. I. c. 8. And, indeed, a peer or peeress cannot be bound over in any other place than the courts of *[*254king’s bench or chancery;4 though a justice of the peace has a power to require sureties of any other person, being compos mentis and under the degree of nobility, whether he be a fellow-justice or other magistrate, or whether he be merely a private man.(h) Wives may demand it against their husbands; or husbands, if necessary, against their wives.(i) But feme-coverts and infants under age ought to find security by their friends only, and not to be bound themselves; for they are incapable of engaging themselves to answer any debt; which, as we observed, is the nature of these recognizances or acknowledgments.

3. A recognizance may be discharged either by the demise of the king, to whom the recognizance is made; or by the death of the principal party bound thereby, if not before forfeited; or by order of the court to which such recognizance is certified by the justices, (as the quarter sessions, assizes, or king’s bench,) if they see sufficient cause; or in case he at whose request it was granted, if granted upon a private account, will release it, or does not make his appearance to pray that it may be continued.(k)

Thus far what has been said is applicable to both species of recognizances, for the peace, and for the good behaviour: de pace, et legalitate, tuenda, as expressed in the laws of king Edward. But as these two species of securities are in some respects different, especially as to the cause of granting or the means of forfeiting them, I shall now consider them separately; and first, shall show for what cause such a recognizance, with sureties for the peace, is grantable; and then, how it may be forfeited.

1. Any justice of the peace may, ex officio, bind all those to keep the peace who in his presence make any affray, or threaten to kill or beat another, or contend together with hot and angry words, or go about with unusual weapons *[*255or attendance, to the terror of the people; and all such as he knows to be common barretors; and such as are brought before him by the constable for a breach of peace in his presence; and all such persons as, having been before bound to the peace, have broken it and forfeited their recognizances.(l) Also, wherever any private man hath just cause to fear that another will burn his house, or do him a corporal injury by killing, imprisoning, or beating him, or that he will procure others so to do, he may demand surety of the peace against such person: and every justice of the peace is bound to grant it, if he who demands it will make oath that he is actually under fear of death or bodily harm, and will show that he has just cause to be so by reason of the other’s menaces, attempts, or having lain in wait for him, and will also further swear that he does not require such surety out of malice, or for mere vexation.(m)5 This is called swearing the peace against another: and if the party does not find such sureties as the justice in his discretion shall require, he may immediately be committed till he does.(n)

2. Such recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an assault or menace to the person of him who demanded it, if it be a special recognizance; or if the recognizance be general, by any unlawful action, whatsoever, that either is or tends to a breach of the peace; or, more particularly, by any one of the many species of offence which were mentioned as crimes against the public peace in the eleventh chapter of this book; or by any private violence committed against any of his majesty’s subjects. But a bare trespass upon the lands or goods of another, which is a ground for a civil action, unless accompanied with a wilful breach of the peace, is no forfeiture of the recognizance.(o) Neither are mere reproachful words, as calling a man knave or liar, any breach of the peace so as to forfeit one’s recognizance, (being **256]looked upon to be merely the effect of unmeaning heat and passion,) unless they amount to a challenge to fight.(p)

The other species of recognizance with sureties is for the good abearance or good behaviour. This includes security for the peace, and somewhat more: we will therefore examine it in the same manner as the other.

1. First, then, the justices are empowered, by the statute 34 Edw. III. c. 1, to bind over to the good behaviour towards the king and his people all them that be not of good fame, wherever they be found; to the intent that the people be not troubled nor endamaged, nor the peace diminished, nor merchants and others, passing by the highways of the realm, be disturbed nor put in the peril which may happen by such offenders. Under the general words of this expression, that be not of good fame, it is holden that a man may be bound to his good behaviour for causes of scandal, contra bonos mores, as well as contra pacem; as, for haunting bawdy-houses with women of bad fame, or for keeping such women in his own house; or for words tending to scandalize the government, or in abuse of the officers of justice, especially in the execution of their office. Thus also a justice may bind over all night-walkers; eaves-droppers; such as keep suspicious company, or are reported to be pilferers or robbers; such as sleep in the day and wake in the night; common drunkards; whore-masters; the putative fathers of bastards; cheats; idle vagabonds; and other persons whose misbehaviour may reasonably bring them within the general words of the statutes as persons not of good fame: an expression, it must be owned, of so great a latitude as to leave much to be determined by the discretion of the magistrate himself. But if he commits a man for want of sureties, he must express the cause thereof with convenient certainty, and take care that such cause be a good one.(q)

**257]2. A recognizance for the good behaviour may be forfeited by all the same means as one for the security of the peace may be; and also by some others. As, by going armed with unusual attendance, to the terror of the people; by speaking words tending to sedition; or by committing any of those acts of misbehaviour which the recognizance was intended to prevent. But not by barely giving fresh cause of suspicion of that which perhaps may never actually happen.(r) for though it is just to compel suspected persons to give security to the public against misbehaviour that is apprehended; yet it would be hard, upon such suspicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance.6

CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

*[*258The sixth, and last, object of our inquiries will be the method of inflicting those punishments which the law has annexed to particular offences; and which I have constantly subjoined to the description of the crime itself. In the discussion of which I shall pursue much the same general method that I followed in the preceding book with regard to the redress of civil injuries: by, first, pointing out the several courts of criminal jurisdiction, wherein offenders may be prosecuted to punishment; and by, secondly, deducing down in their natural order, and explaining, the several proceedings therein.

First, then, in reckoning up the several courts of criminal jurisdiction, I shall, as in the former case, begin with an account of such as are of a public and general jurisdiction throughout the whole realm, and afterwards proceed to such as are only of a private and special jurisdiction, and confined to some particular parts of the kingdom.

I. In our inquiries into the criminal courts of public and general jurisdiction I must in one respect pursue a different order from that in which I considered the civil tribunals. For there, as the several courts had a gradual subordination to each other, the superior correcting and reforming the errors of the inferior, I thought it best to begin with the lowest, and so ascend gradually to the courts of appeal, or those of *[*259the most extensive powers. But as it is contrary to the genius and spirit of the law of England to suffer any man to be tried twice for the same offence in a criminal way, especially if acquitted upon the first trial, therefore these criminal courts may be said to be all independent of each other, at least so far as that the sentence of the lowest of them can never be controlled or reversed by the highest jurisdiction in the kingdom, unless for error in matter of law apparent upon the face of the record; though sometimes causes may be removed from one to the other before trial. And therefore, as in these courts of criminal cognizance there is not the same chain and dependence as in the others, I shall rank them according to their dignity, and begin with the highest of all; viz,—

1. The high court of parliament, which is the supreme court in the kingdom, not only for the making but also for the execution of laws, by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment. As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose, I speak not of them, being to all intents and purposes new laws, made pro re nata, and by no means an execution of such as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom.(a) A commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanours.(b)1 A peer may be impeached for any *[*260crime: and they usually (in case of an impeachment of a peer for treason) address the crown to appoint a lord high steward for the greater dignity and regularity of their proceedings, which high steward was formerly elected by the peers themselves, though he was generally commissioned by the king;(c) but it hath of late years been strenuously maintained(d) that the appointment of a high steward in such cases is not indispensably necessary, but that the house may proceed without one. The articles of impeachment are a kind of bills of indictment found by the house of commons, and afterwards tried by the lords, who are, in cases of misdemeanours, considered not only as their own peers, but as the peers of the whole nation. This is a custom derived to us from the constitution of the antient Germans, who, in their great councils, sometimes tried capital accusations relating to the public: “licet apud consilium accusare quoque, et discrimen capitis intendere.”(e) And it has a peculiar propriety in the English constitution, which has much improved upon the antient model imported hither from the continent. For, though in general the union of the legislative and judicial powers ought to be more carefully avoided,(f) yet it may happen that a subject intrusted with the administration of public affairs may infringe the rights of the people, and be guilty of such crimes as the ordinary magistrate either **261dares not or cannot punish. Of these the representatives of the people or house of commons cannot properly judge, because their constituents are the parties injured, and can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser. Reason, therefore, will suggest that this branch of the legislature, which represents the people, must bring its charge before the other branch, which consists of the nobility, who have neither the same interests nor the same passions as popular assemblies.(g) This is a vast superiority which the constitution of this island enjoys over those of the Grecian or Roman republics, where the people were at the same time both judges and accusers. It is proper that the nobility should judge, to insure justice to the accused, as it is proper that the people should accuse, to insure justice to the commonwealth. And therefore, among other extraordinary circumstances attending the authority of this court, there is one of a very singular nature, which was insisted on by the house of commons in the case of the earl of Danby, in the reign of Charles II.;(h) and it is now enacted, by statute 12 & 13 W. III. c. 2, that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament.(i)

2. The court of the lord high steward of Great Britain(k) is a court instituted for the trial of peers indicted for treason or felony, or for misprision of either.(l) The office of this great magistrate is very antient, and was formerly hereditary, or at least held for life, or dum bene se gesserit: but now it is usually, and hath been for many centuries past,(m) granted pro hac vice only; and it hath been the constant practice (and therefore seems now to have become necessary) to grant *[*262it to a lord of parliament, else he is incapable to try such delinquent peer.(n) When such an indictment is therefore found by a grand jury of freeholders in the king’s bench, or at the assizes before the justices of oyer and terminer, it is to be removed by a writ of certiorari into the court of the lord high steward, which only has power to determine it. A peer may plead a pardon before the court of king’s bench, and the judges have power to allow it, in order to prevent the trouble of appointing a high steward merely for the purpose of receiving such plea. But he may not plead in that inferior court any other plea, as guilty or not guilty of the indictment, but only in this court; because, in consequence of such plea, it is possible that judgment of death might be awarded against him. The king, therefore, in case a peer be indicted for treason, felony, or misprision, creates a lord high steward pro hac vice, by commission under the great seal, which recites the indictment so found, and gives his grace power to receive and try it secundum legem et consuetudinem Angliæ. Then, when the indictment is regularly removed by writ of certiorari, commanding the inferior court to certify it up to him, the lord high steward directs a precept to a serjeant-at-arms to summon the lords to attend and try the indicted peer. This precept was formerly issued to summon only eighteen or twenty, selected from the body of the peers: then the number came to be indefinite, and the custom was for the lord high steward to summon as many as he thought proper, (but of late years not less than twenty-three,)(o) and that those lords only should sit upon the trial;2 which threw a monstrous weight of power into the hands of the crown and this its great officer of selecting only such peers as the then predominant party should most approve of. And accordingly, when the earl of Clarendon fell into disgrace with Charles II., *[*263there was a design formed to prorogue the parliament, in order to try him by a select number of peers, it being doubted whether the whole house could be induced to fall in with the views of the court.(p) But now, by statute 7 W. III. c. 3, upon all trials of peers for treason or misprision, all the peers who have a right to sit and vote in parliament shall be summoned at least twenty days before such trial to appear and vote therein; and every lord appearing shall vote in the trial of such peer, first taking the oaths of allegiance and supremacy and subscribing the declaration against popery.

During the session of parliament the trial of an indicted peer is not properly in the court of the lord high steward, but before the court last mentioned,—of our lord the king in parliament.(q) It is true, a lord high steward is always appointed in that case to regulate and add weight to the proceedings; but he is rather in the nature of a speaker pro tempore or thairman of the court than the judge of it; for the collective body of the peers are therein the judges both of law and fact, and the high steward has a vote with the rest, in right of his peerage. But in the court of the lord high steward, which is held in the recess of parliament, he is the sole judge of matters of law, as the lords triors are in matters of fact; and as they may not interfere with him in regulating the proceedings of the court, so he has no right to intermix with them in giving any vote upon the trial.(r) Therefore, upon the conviction and attainder of a peer for murder in full parliament, it hath been holden by the judges(s) that in case the day appointed in the judgment for execution should lapse before execution done, a new time of execution may be appointed by either the high court of parliament during its sitting, though no high steward be existing, or in the recess of parliament by the court of king’s bench, the record being removed into that court.

**264]It has been a point of some controversy whether the bishops have now a right to sit in the court of the lord high steward to try indictments of treason and misprision. Some incline to imagine them included under the general words of the statute of king William, “all peers who have a right to sit and vote in parliament;” but the expression had been much clearer if it had been “all lords,” and not “all peers;” for though bishops, on account of the baronies annexed to their bishoprics, are clearly lords of parliament, yet, their blood not being ennobled, they are not universally allowed to be peers with the temporal nobility: and perhaps this word might be inserted purposely with a view to exclude them. However, there is no instance of their sitting on trials for capital offences, even upon impeachments or indictments in full parliament, much less in the court we are now treating of; for, indeed, they usually withdraw voluntarily, but enter a protest declaring their right to stay. It is observable that, in the eleventh chapter of the constitutions of Clarendon, made in parliament, 11 Hen. II., they are expressly excused, rather than excluded, from sitting and voting in trials when they come to concern life or limb: “episcopi, sicut cæteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem;” and Becket’s quarrel with the king hereupon was not on account of the exception, (which was agreeable to the canon law,) but of the general rule that compelled the bishops to attend at all. And the determination of the house of lords in the earl of Danby’s case,(t) which hath ever since been adhered to, is consonant to these constitutions: “that the lords spiritual have a right to stay and sit in court in capital cases till the court proceeds to the vote of guilty or not guilty.” It must be noted that this resolution extends only to trials in full parliament: for to the court of the lord high steward (in which no vote can be given but merely that of guilty or not guilty) no bishop, as such, ever was or could be summoned; and though the statute of king William **265]regulates the proceedings in that court as well as in the court of parliament, yet it never intended to new-model or alter its constitution, and consequently does not give the lords spiritual any right in cases of blood which they had not before.(u) And what makes their exclusion more reasonable is, that they have no right to be tried themselves in the court of the lord high steward,(w) and therefore surely ought not to be judges there. For the privilege of being thus tried depends upon nobility of blood rather than a seat in the house, as appears from the trial of popish lords, of lords under age, and (since the union) of the Scots nobility, though not in the number of the sixteen; and from the trials of females, such as the queen consort or dowager, and of all peeresses by birth, and peeresses by marriage also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband.3

3. The court of king’s bench,(x) concerning the nature of which we partly inquired in the preceding book,(y) was (we may remember) divided into a crown side and a plea side. And on the crown side or crown office it takes cognizance of all criminal causes, from high treason down to the most trivial misdemeanour or breach of the peace.4 Into this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar or at nisi prius by a jury of the county out of which the indictment is brought.5 The judges of this court are the supreme coroners of the kingdom, and the court itself is the principal court of criminal jurisdiction (though the two former are of greater dignity) known to the laws of England. For which reason, by the coming of the court of king’s bench into any county, (as it was removed to Oxford on account of the sickness in 1665,) all former commissioners of oyer and terminer and general gaol delivery are at once absorbed and determined ipso facto; *[*266in the same manner as, by the old Gothic and Saxon constitutions, “jure vetusto obtinuit, quievisse omnia inferiora judicia, dicente jus rege.”(z)6

Into this court of king’s bench hath reverted all that was good and salutary of the jurisdiction of the court of starchamber, camera stellata,(a)7 which was a court of very antient original,(b) but new-modelled by statutes 3 Hen. VII. c. 1 and 21 Hen. VIII. c. 20, consisting of divers lords spiritual and temporal being privy counsellors, together with two judges of the courts of common law, without the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehaviour of sheriffs, and other notorious **267]misdemeanours contrary to the laws of the land. Yet this was afterwards (as lord Clarendon informs us)(c) stretched “to the asserting of all proclamations and orders of state; to the vindicating of illegal commissions and grants of monopolies; holding for honourable that which pleased and for just that which profited, and becoming both a court of law to determine civil rights and a court of revenue to enrich the treasury; the council-table by proclamations enjoining to the people that which was not enjoined by the laws, and prohibiting that which was not prohibited; and the star-chamber, which consisted of the same persons in different rooms, censuring the breach and disobedience to those proclamations by very great fines, imprisonments, and corporal severities: so that any disrespect to any acts of state or to the persons of statesmen was in no time more penal, and the foundations of right never more in danger to be destroyed.” For which reason it was finally abolished, by statute 16 Car. I. c. 10, to the general joy of the whole nation.(d)

4. **268]The court of chivalry,(e) of which we also formerly spoke(f) as a military court or court of honour, when held before the earl marshal only, is also a criminal court when held before the lord high constable of England jointly with the earl marshal. And then it has jurisdiction over pleas of life and member, arising in matters of arms and deeds of war, as well out of the realm as within it. But the criminal as well as civil part of its authority is fallen into entire disuse, there having been no permanent high constable of England (but only pro hac vice, at coronations and the like) since the attainder and execution of Stafford duke of Buckingham in the thirteenth year of Henry VIII.; the authority and charge, both in war and peace, being deemed too ample for a subject: so ample, that when the chief justice Fineux was asked by king Henry the Eighth how far they extended, he declined answering, and said the decision of that question belonged to the law of arms, and not to the law of England.(g)

5. The high court of admiralty,(h) held before the lord high admiral of England or his deputy, styled the judge of the admiralty, is not only a court of civil but also of criminal jurisdiction. This court hath cognizance of all crimes and offences committed either upon the sea or on the coasts out of the body or extent of any English county, and, by statute 15 Ric. II. c. 3, of death and mayhem happening in great ships being and hovering in the main stream of great rivers, below the bridges of the same rivers, which are then a sort of ports or havens, such as are the ports of London and Gloucester, though they lie at a great distance from the sea. But, as this court proceeded without jury, in a method much conformed to the civil law, the exercise of a criminal jurisdiction there was contrary to the genius of the law of England, inasmuch as a man might be there deprived of his life by the opinion of a single judge, without the judgment of his peers. And besides, as innocent persons might thus fall a sacrifice to the caprice of a single man, so very gross offenders might and did frequently escape *[*269punishment; for the rule of the civil law is, how reasonably I shall not at present inquire, that no judgment of death can be given against offenders without proof by two witnesses, or a confession of the fact by themselves. This was always a great offence to this English nation; and therefore, in the eighth year of Henry VI., it was endeavoured to apply a remedy in parliament, which then miscarried for want of the royal assent. However, by the statute 28 Hen. VIII. c. 15, it was enacted that these offences should be tried by commissioners of oyer and terminer under the king’s great seal, namely, the admiral or his deputy, and three or four more, (among whom two common-law judges are usually appointed;) the indictment being first found by a grand jury of twelve men, and afterwards tried by a petty jury: and that the course of proceedings should be according to the law of the land. This is now the only method of trying marine felonies in the court of admiralty, the judge of the admiralty still presiding therein, as the lord mayor is the president of the session of oyer and terminer in London.9

These five courts may be held in any part of the kingdom, and their jurisdiction extends over crimes that arise throughout the whole of it, from one end to the other. What follow are also of a general nature, and universally diffused over the nation, but yet are of a local jurisdiction, and confined to particular districts. Of which species are,10 —

6, 7. The courts of oyer and terminer and the general gaol delivery,(i) which are held before the king’s commissioners, among whom are usually two judges of the courts at Westminster, twice in every year in every county of the kingdom except the four northern ones, where they are held only once, and London and Middlesex, wherein they are held eight times. These were slightly mentioned in the preceding book.(k) We then observed that at what is usually called the assizes the judges sit by virtue of five several authorities, two of which, the commission of assize and its attendant jurisdiction of nisi **270]prius, being principally of a civil nature, were then explained at large; to which I shall only add that these justices have, by virtue of several statutes, a criminal jurisdiction also in certain special cases.(l) The third, which is the commission of the peace, was also treated of in a former volume,(m) when we inquired into the nature and office of a justice of the peace. I shall only add that all the justices of the peace of any county wherein the assizes are held are bound by law to attend them, or else are liable to a fine, in order to return recognizances, &c., and to assist the judges in such matters as lie within their knowledge and jurisdiction, and in which some of them have probably been concerned by way of previous examination. But the fourth authority is the commission of oyer and terminer,(n) to hear and determine all treasons, felonies, and misdemeanours. This is directed to the judges and several others, or any two of them; but the judges or serjeants-at-law only are of the quorum, so that the rest cannot act without the presence of one of them. The words of the commission are, “to inquire, hear, and determine;” so that by virtue of this commission they can only proceed upon an indictment found at the same assizes; for they must first inquire by means of the grand jury or inquest before they are empowered to hear and determine by the help of the petit jury. Therefore they have, besides, fifthly, a commission of general gaol delivery,(o) which empowers them to try and deliver every prisoner who shall be in the gaol when the judges arrive at the circuit town, whenever or before whomsoever indicted, or for whatever crime committed. It was antiently the course to issue special writs of gaol delivery for each particular prisoner, which were called the writs de bono et malo;(p) but, these being found inconvenient and oppressive, a general commission for all the prisoners has long been established in their stead. So that, one way or other, the gaols are in general cleared, and all offenders tried, punished, or delivered, twice in every year: a constitution of singular use and *[*271excellence.11 Sometimes, also, upon urgent occasions, the king issues a special or extraordinary commission of oyer and terminer and gaol delivery, confined to those offences which stand in need of immediate inquiry and punishment; upon which the course of proceeding is much the same as upon general and ordinary commissions. Formerly it was held, in pursuance of the statutes 8 Ric. II. c. 2 and 33 Hen. VIII. c. 4, that no judge or other lawyer could act in the commission of oyer and terminer or in that of gaol delivery within his own county where he was born or inhabited, in like manner as they are prohibited from being judges of assize and determining civil causes. But that local partiality, which the jealousy of our ancestors was careful to prevent, being judged less likely to operate in the trial of crimes and misdemeanours than in matters of property and disputes between party and party, it was thought proper, by the statute 12 Geo. II. c. 27, to allow any man to be a justice of oyer and terminer and general gaol delivery within any county of England.

8. The court of general quarter sessions of the peace(q) is a court that must be held in every county once in every quarter of a year, which, by statute 2 Hen. V. c. 4, is appointed to be in the first week after Michaelmas-day, the first week after the Epiphany, the first week after the close of Easter, and in the week after the translation of St. Thomas the martyr, or the seventh of July.12 It is held before two or more justices of the peace, one of which must be of the quorum. The jurisdiction of this court, by statute 34 Edw. III. c. 1, extends to the trying and determining all felonies and trespasses whatsoever, though they seldom if ever try any greater offence than small felonies within the benefit of clergy; their commission providing that, if any case of difficulty arises, they shall not proceed to judgment but in the presence of one of the justices of the court of king’s bench or common pleas, or one of the judges of assize. And therefore murders and other capital felonies are usually remitted, for a **272]more solemn trial, to the assizes. They cannot also try any new-created offence without express power given them by the statute which creates it.(r) But there are many offences and particular matters which by particular statutes belong properly to this jurisdiction, and ought to be prosecuted in this court; as the smaller misdemeanours against the public or commonwealth not amounting to felony, and especially offences relating to the game, highways, alehouses, bastard children, the settlement and provision of the poor, vagrants, servants’ wages, apprentices, and popish recusants.(s) Some of these are proceeded upon by indictment, and others in a summary way by motion and order thereupon; which order may for the most part, unless guarded against by particular statutes, be removed into the court of king’s bench by a writ of certiorari facias, and be there either quashed or confirmed. The records or rolls of the sessions are committed to the custody of a special officer denominated the custos rotulorum, who is always a justice of the quorum; and among them of the quorum (saith Lambard)(t) a man for the most part especially picked out, either for wisdom, countenance, or credit. The nomination of the custos rotulorum (who is the principal civil officer in the county, as the lord lieutenant is the chief in military command) is by the king’s sign-manual; and to him the nomination of the clerk of the peace belongs, which office he is expressly forbidden to sell for money.(u)

In most corporation-towns there are quarter sessions kept before justices of their own, within their respective limits, which have exactly the same authority as the general quarter sessions of the county, except in a very few instances; one of the most considerable of which is the matter of appeals from orders of removal of the poor, which, though they be from the orders of corporation-justices, must be to the sessions of the county, by statute 8 & 9 W. III. c. 30. In both corporations and counties at large there is sometimes kept a special or **273]petty session, by a few justices, for despatching smaller business in the neighbourhood between the times of the general sessions: as for licensing alehouses, passing the accounts of the parish officers, and the like.

9. The sheriff’s tourn,(v) or rotation, is a court of record held twice every year, within a month after Easter and Michaelmas, before the sheriff, in different parts of the county; being indeed only the turn of the sheriff to keep a court leet in each respective hundred:(w) this therefore is the great court-leet of the county, as the county-court is the court-baron; for out of this, for the ease of the sheriff, was it taken.

10. The court-leet, or view of frankpledge,(x) which is a court of record, held once in the year, and not oftener,(y) within a particular hundred, lordship, or manor, before the steward of the leet: being the king’s court, granted by charter to the lords of those hundreds or manors. Its original intent was to view the frankpledges, that is, the freemen within the liberty; who, (we may remember,)(z) according to the institution of the great Alfred, were all mutually pledges for the good behaviour of each other. Besides this, the preservation of the peace, and the chastisement of divers minute offences against the public good, are the objects both of the court-leet and the sheriff’s tourn; which have exactly the same jurisdiction, one being only a larger species of the other, extending over more territory but not over more causes. All freeholders within the precinct are obliged to attend them, and all persons commorant therein; which commorancy consists in usually lying there: a regulation which owes its origin to the laws of king Canute.(a) But persons under twelve and above sixty years old, peers, clergymen, women, and the king’s tenants in antient demesne, are excused from attendance there; all others being bound to appear upon the jury, if required, and make their due presentments. It was also antiently the custom to summon all the king’s subjects, as they respectively grew to years of discretion and strength, to *[*274come to the court-leet and there take the oath of allegiance to the king. The other general business of the leet and tourn was to present by jury all crimes whatsoever that happened within their jurisdiction; and not only to present, but also to punish, all trivial misdemeanours, as all trivial debts were recoverable in the court-baron and county-court; justice, in these minuter matters of both kinds, being brought home to the doors of every man by our antient constitution. Thus, in the Gothic constitution, the hæreda, which answered to our court-leet, “de omnibus quidem cognoscit, non tamen de omnibus judicat.”(b) The objects of their jurisdiction are therefore unavoidably very numerous: being such as in some degree, either less or more, affect the public weal or good governance of the district in which they arise; from common nuisances, and other material offences against the king’s peace and public trade, down to eaves-dropping, waifs, and irregularities in public commons. But both the tourn and the leet have been for a long time in a declining way; a circumstance owing in part to the discharge granted by the statute of Marlbridge, 52 Hen. III. c. 10, to all prelates, peers, and clergymen, from their attendance upon these courts, which occasioned them to grow into disrepute. And hence it is that their business hath for the most part gradually devolved upon the quarter sessions, which it is particularly directed to do in some cases by statute 1 Edw. IV. c. 2.

11. The court of the coroners(c) is also a court of record, to inquire when any one dies in prison, or comes to a violent or sudden death, by what manner he came to his end. And this he is only entitled to do super visum corporis.13 Of the coroner and his office we treated at large in a former volume,(d) among the public officers and ministers of the kingdom, and therefore shall not here repeat our inquiries; only mentioning his court by way of regularity among the criminal courts of the nation.

*[*27512. The court of the clerk of the market(e) is incident to every fair and market in the kingdom, to punish misdemeanours therein, as a court of pie poudre is, to determine all disputes relating to private or civil property. The object of this jurisdiction(f) is principally the recognizance of weights and measures, to try whether they be according to the true standard thereof or no; which standard was antiently committed to the custody of the bishop, who appointed some clerk under him to inspect the abuse of them more narrowly; and hence this officer, though now usually a layman, is called the clerk of the market.(g) If they be not according to the standard, then, besides the punishment of the party by fine, the weights and measures themselves ought to be burned. This is the most inferior court of criminal jurisdiction in the kingdom: though the objects of its coercion were esteemed among the Romans of such importance to the public that they were committed to the care of some of their most dignified magistrates, the curule ædiles.

II. There are a few other criminal courts of greater dignity than many of these, but of a more confined and partial jurisdiction; extending only to some particular places which the royal favour, confirmed by act of parliament, has distinguished by the privilege of having peculiar courts of their own for the punishment of crimes and misdemeanours arising within the bounds of their cognizance. These, not being universally dispersed, or of general use, as the former, but confined to one spot as well as to a determinate species of causes, may be denominated private or special courts of criminal jurisdiction.

I speak not here of ecclesiastical courts, which punish spiritual sins, rather than temporal crimes, by penance, contrition, and excommunication, pro salute animæ, or, which is looked upon as equivalent to all the rest, by a sum of **276]money to the officers of the court by way of commutation of penance. Of these we discoursed sufficiently in the preceding book.(h) I am now speaking of such courts as proceed according to the course of the common law; which is a stranger to such unaccountable bartering of public justice.

1. And, first, the court of the lord steward, treasurer, or comptroller of the king’s household(i) was instituted, by statute 3 Hen. VII. c. 14, to inquire of felony by any of the king’s sworn servants, in the check-roll of the household, under the degree of a lord, in confederating, compassing, conspiring, and imagining the death or destruction of the king or any lord or other of his majesty’s privy council, or the lord steward, treasurer, or comptroller of the king’s house. The inquiry, and trial thereupon, must be by a jury, according, to the course of the common law, consisting of twelve sad men (that is, sober and discreet persons) of the king’s household.

2. The court of the lord steward of the king’s household, or (in his absence) of the treasurer, comptroller, and steward of the marshalsea,(k) was erected by statute 33 Hen. VIII. c. 12, with a jurisdiction to inquire of, hear, and determine all treasons, misprisions of treason, murders, manslaughters, bloodshed, and other malicious strikings, whereby blood shall be shed in or within the limits (that is within two hundred feet from the gate) of any of the palaces and houses of the king, or any other house where the royal person shall abide. The proceedings are also by jury, both a grand and a petit one, as at common law, taken out of the officers and sworn servants of the king’s household. The form and solemnity of the process, particularly with regard to the execution of the sentence for cutting off the hand, which is part of the punishment for shedding blood in the king’s court, are very minutely set forth in the said statute 33 Hen. VIII., and the several offices of the servants of the household in and about such execution are **277]described, from the sergeant of the wood-yard, who furnishes the chopping-block, to the sergeant-farrier, who brings hot irons to sear the stump.14

3. As in the preceding book(l) we mentioned the courts of the two universities, or their chancellors’ courts, for the redress of civil injuries, it will not be improper now to add a short word concerning the jurisdiction of their criminal courts, which is equally large and extensive. The chancellor’s court of Oxford (with which university the author hath been chiefly conversant, though probably that of Cambridge hath also a similar jurisdiction) hath authority to determine all causes of property wherein a privileged person is one of the parties, except only causes of freehold, and also all criminal offences or misdemeanours under the degree of treason, felony, or mayhem. The prohibition of meddling with freehold still continues; but the trial of treason, felony, and mayhem, by a particular charter, is committed to the university-jurisdiction in another court, namely, the court of the lord high steward of the university.

For, by the charter of 7 Jun. 2 Hen. IV., (confirmed, among the rest, by the statute 13 Eliz. c. 29,) cognizance is granted to the university of Oxford of all indictments of treasons, insurrections, felony, and mayhem which shall be found in any of the king’s courts against a scholar or privileged person; and they are to be tried before the high steward of the university, or his deputy, who is to be nominated by the chancellor of the university for the time-being. But when his office is called forth into action, such high steward must be approved of by the lord high chancellor of England; and a special commission under the great seal is given to him and others to try the indictment, then depending, according to the law of the land and the privileges of the said university. When, therefore, an indictment is found *[*278at the assizes, or elsewhere, against any scholar of the university, or other privileged person, the vice-chancellor may claim the cognizance of it; and (when claimed in due time and manner) it ought to be allowed him by the judges of assize: and then it comes to be tried in the high steward’s court. But the indictment must first be found by a grand jury, and then the cognizance claimed; for I take it that the high steward cannot proceed originally ad inquirendum, but only, after inquest in the common-law courts, ad audiendum et determinandum. Much in the same manner as when a peer is to be tried in the court of the lord high steward of Great Britain, the indictment must first be found at the assizes or in the court of king’s bench, and then (in consequence of a writ of certiorari) transmitted to be finally heard and determined before his grace the lord high steward and the peers.

When the cognizance is so allowed, if the offence be inter minora crimina, or a misdemeanour only, it is tried in the chancellor’s court by the ordinary judge. But if it be for treason, felony, or mayhem, it is then, and then only, to be determined before the high steward, under the king’s special commission to try the same. The process of the trial is this. The high sheriff issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedels of the university, who thereupon return a panel of eighteen matriculated laymen, “laicos privilegio universitatis gaudentes:” and by a jury formed de medietate, half of freeholders and half of matriculated persons, is the indictment to be tried; and that in the guildhall of the city of Oxford. And if execution be necessary to be awarded, in consequence of finding the party guilty, the sheriff of the county must execute the university-process; to which he is annually bound by an oath.

*[*279I have been the more minute in describing these proceedings, as there has happily been no occasion to reduce them into practice for more than a century past, nor will it perhaps ever be thought advisable to revive them; though it is not a right that merely rests in scriptis or theory, but has formerly often been carried into execution. There are many instances—one in the reign of queen Elizabeth, two in that of James the First, and two in that of Charles the First—where indictments for murder have been challenged by the vice-chancellor at the assizes, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff’s and bedel’s panels, and all the other proceedings on the trial of the several indictments are still extant in the archives of that university.

CHAPTER XX.

OF SUMMARY CONVICTIONS.

*[*280We are next, according to the plan I have laid down, to take into consideration the proceedings in the courts of criminal jurisdiction in order to the punishment of offences. These are plain, easy, and regular; the law not admitting any fictions, as in civil causes, to take place where the life, the liberty, and the safety of the subject are more immediately brought into jeopardy. And these proceedings are divisible into two kinds, summary and regular; of the former of which I shall briefly speak before we enter upon the latter, which will require a more thorough and particular examination.

By a summary proceeding1 I mean principally such as is directed by several acts of parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders and the inflicting of certain penalties created by those acts of parliament.2 In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only as the statute has appointed for his judge,—an institution designed professedly for the greater ease of the subject by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute **281]offence. But it has of late been so far extended as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases.3 For,—

I Of this summary nature are all trials of offences and frauds contrary to the laws of the excise and other branches of the revenue, which are to be inquired into and determined by the commissioners of the respective departments, or by justices of the peace in the country; officers who are all of them appointed and removable at the discretion of the crown. And though such convictions are absolutely necessary for the due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expense and delay of frequent prosecutions by action or indictment; and though such has usually been the conduct of the commissioners, as seldom (if ever) to afford just grounds to complain of oppression, yet when we again(a) consider the various and almost innumerable branches of this revenue which may be in their turns the subjects of fraud, or at least complaints of fraud, and of course the objects of this summary and arbitrary jurisdiction, we shall find that the power of these officers of the crown over the property of the people is increased to a very formidable height.

II. Another branch of summary proceedings is that before justices of the peace, in order to inflict divers petty pecuniary mulcts and corporal penalties denounced by act of parliament for many disorderly offences, such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice-books formerly cited,(b) and which used to be formerly punished by the verdict of a jury in the court-leet. This change in the administration of justice hath, however, had some mischievous effects; as,—1. The almost entire disuse and contempt of the court-leet and sheriff’s tourn, the king’s antient courts of common law, formerly much revered and respected. **282]2. The burthensome increase of the business of a justice of the peace, which discourages so many gentlemen of rank and character from acting in the commission, from an apprehension that the duty of their office would take up too much of that time which they are unwilling to spare from the necessary concerns of their families, the improvement of their understandings, and their engagements in other services of the public. Though if all gentlemen of fortune had it both in their power and inclinations to act in this capacity, the business of a justice of the peace would be more divided and fall the less heavy upon individuals; which would remove what in the present scarcity of magistrates is really an objection so formidable that the country is greatly obliged to any gentleman of figure who will undertake to perform that duty which, in consequence of his rank in life, he owes more peculiarly to his country. However, this backwardness to act as magistrates, arising greatly from this increase of summary jurisdiction, is productive of,—3. A third mischief, which is, that this trust, when slighted by gentlemen, falls of course into the hands of those who are not so, but the mere tools of office. And then the extensive power of a justice of the peace, which even in the hands of men of honour is highly formidable, will be prostituted to mean and scandalous purposes, to the low ends of selfish ambition, avarice, or personal resentment. And from these ill consequences we may collect the prudent foresight of our antient lawgivers, who suffered neither the property nor the punishment of the subject to be determined by the opinion of any one of two men; and we may also observe the necessity of not deviating any further from our antient constitution by ordaining new penalties to be inflicted upon summary convictions.4

The process of these summary convictions, it must be owned, is extremely speedy. Though the courts of common law have thrown in one check upon them by making it necessary to summon the party accused before he is *[*283condemned. This is now held to be an indispensable requisite,(c) though the justices long struggled the point; forgetting that rule of natural reason expressed by Seneca,—

• “Qui statuit aliquid, parte inaudita altera,
• Aequum licet statuerit, haud acquus fuit:”5

A rule to which all municipal laws that are founded on the principles of justice have strictly conformed: the Roman law requiring a citation at the least; and our common law never suffering any fact (either civil or criminal) to be tried till it has previously compelled an appearance by the party concerned. After this summons the magistrate, in summary proceedings, may go on to examine one or more witnesses, as the statute may require, upon oath;6 and then make his conviction of the offender in writing: upon which he usually issues his warrant either to apprehend the offender, in case corporal punishment is to be inflicted on him; or else to levy the penalty incurred by distress and sale of his goods. This is in general the method of summary proceedings before a justice or justices of the peace; but for particulars we must have recourse to the several statutes which create the offence or inflict the punishment; and which usually chalk out the method by which offenders are to be convicted.7 Otherwise they fall of course under the general rule, and can only be convicted by indictment or information at the common law.

III. To this head of summary proceedings may also be properly referred the method, immemorially used by the superior courts of justice, of punishing contempts by attachment, and the subsequent proceedings thereon.

The contempts that are thus punished are either direct, which openly insult or resist the powers of the courts or the persons of the judges who preside there, or else are consequential, which (without such gross insolence or direct opposition) *[*284plainly tend to create a universal disregard of their authority. The principal instances of either sort that have been usually(d) punishable by attachment are chiefly of the following kinds: 1. Those committed by inferior judges and magistrates by acting unjustly, oppressively, or irregularly in administering those portions of justice which are intrusted to their distribution, or by disobeying the king’s writs issuing out of the superior courts by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas, and the like; for, as the king’s superior courts (and especially the courts of king’s bench) have a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, gaolers, and other officers of the court, by abusing the process of the law or deceiving the parties; by any acts of oppression, extortion, collusive behaviour, or culpable neglect of duty. 3. Those committed by attorneys and solicitors, who are also officers of the respective courts, by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice;8 for the malpractice of the officers reflects some dishonour on their employers, and, if frequent or unpunished, creates among the people a disgust against the courts themselves. 4. Those committed by jurymen in collateral matters relating to the discharge of their office, such as making default when summoned, refusing to be sworn or to give any verdict, eating or drinking without the leave of the court, and especially at the cost of either party, and other misbehaviour or irregularities of a similar kind; but not in mere exercise of their judicial capacities, as by giving a false or erroneous verdict. 5. Those committed by witnesses, by making default when summoned, refusing to be sworn or examined, or prevaricating in their evidence when sworn. 6. Those committed by parties to any suit or proceeding before the court, as by disobedience to any **285]rule or order made in the progress of a cause, by non-payment of costs awarded by the court upon a motion, or by non-observance of awards duly made by arbitrators or umpires after having entered into a rule for submitting to such determination.(e) Indeed, the attachment for most of this species of contempts, and especially for non-payment of costs and non-performance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court.9 And therefore it hath been held that such contempts, and the process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by the general act of pardon. And upon a similar principle, obedience to any rule of court may also, by statute 10 Geo. III. c. 50, be enforced against any person having privilege of parliament by the process of distress infinite. 7. Those committed by any other persons under the degree of a peer, and even by peers themselves, when enormous and accompanied with violence, such as forcible rescous and the like,(f) or when they import a disobedience to the king’s great prerogative writs of prohibition, habeas corpus,(g) and the rest.10 Some of these contempts may arise in the face of the court, as by rude and contumelious behaviour; by obstinacy, perverseness, or prevarication; by breach of the peace, or any wilful disturbance whatever: others in the absence of the party, as by disobeying or treating with disrespect the king’s writ, or the rules or process of the court, by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the court or judges, acting in their judicial capacity; by printing false accounts (or even true ones without proper permission) of causes then depending in judgment; **286]and by any thing, in short, that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.

The process of attachment for these and the like contempts must necessarily be as antient as the laws themselves; for laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. A power, therefore, in the supreme courts of justice, to suppress such contempts by an immediate attachment of the offender results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly, we find it actually exercised as early as the annals of our law extend; and though a very learned author(h) seems inclinable to derive the process from the statute of Westm. 2, 13 Edw. I. c. 39, (which ordains that in case the process of the king’s courts be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, “a qua non deliberentur sine speciali præcepto domini regis;” and if the sheriff himself be resisted, he shall certify to the courts the names of the principal offenders, their aiders, consenters, commanders, and favourers, and by a special writ judicial they shall be attached by their bodies to appear before the court, and if they be convicted thereof they shall be punished at the king’s pleasure, without any interfering by any other person whatsoever,) yet he afterwards more justly concludes that it is a part of the law of the land, and, as such, is confirmed by the statute of magna charta.

If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges,(i) without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that *[*287a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him,(j) or, in very flagrant instances of contempt, the attachment issues in the first instance;(k) as it also does if no sufficient cause be shown to discharge; and thereupon the court confirms and makes absolute the original rule. This process of attachment is merely intended to bring the party into court; and, when there, he must either stand committed, or put in bail, in order to answer upon oath to such interrogatories as shall be administered to him for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must by the course of the court be exhibited within the first four days;(l) and if any of the interrogatories are improper, the defendant may refuse to answer it, and move the court to have it struck out.(m) If the party can clear himself upon oath, he is discharged, but, if perjured, may be prosecuted for the perjury.(n) If he confesses the contempt, the court will proceed to correct him by fine or imprisonment, or both, and sometimes by a corporal or infamous punishment.(o) If the contempt be of such nature that, when the fact is once acknowledged, the court can receive no further information by interrogatories than it is already possessed of, (as in the case of a rescous,)(p) the defendant may be admitted to make such simple acknowledgment, and receive his judgment without answering to any interrogatories:11 but if he wilfully and obstinately refuses to answer, or answers in an evasive manner, he is then clearly guilty of a high and repeated contempt, to be punished at the discretion of the court.

It cannot have escaped the attention of the reader that this method of making the defendant answer upon oath to a criminal charge is not agreeable to the genius of the common law in any other instance,(q) *[*288and seems, indeed, to have been derived to the courts of king’s bench and common pleas through the medium of the courts of equity. For the whole process of the courts of equity, in the several stages of a cause, and finally to enforce their decrees, was, till the introduction of sequestrations, in the nature of a process of contempt; acting only in personam, and not in rem. And there, after the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party: whereas, in the courts of law, the admission of the party to purge himself by oath is more favourable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed. And, with regard to this singular mode of trial, thus admitted in this one particular instance, I shall only for the present observe that, as the process by attachment in general appears to be extremely antient,(r) and has in more modern times been recognised, approved, and confirmed by several express acts of parliament,(s) so the method of examining the delinquent himself upon oath, with regard to the contempt alleged, is at least of as high antiquity,(t) and by long and immemorial usage is now become the law of the land.

CHAPTER XXI.

OF ARRESTS.

**289]We are now to consider the regular and ordinary method of proceeding in the courts of criminal jurisdiction; which may be distributed under twelve general heads, following each other in a progressive order; viz., 1. Arrest; 2. Commitment, and bail; 3. Prosecution; 4. Process; 5. Arraignment, and its incidents; 6. Plea, and issue; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and its consequences; 10. Reversal of Judgment; 11. Reprieve, or pardon; 12. Execution;—all of which will be discussed in the subsequent part of this book.

First, then, of an arrest;1 which is the apprehending or restraining of one’s person, in order to be forthcoming to answer an alleged or suspected crime. To this arrest all persons whatsoever are, without distinction, equally liable in all criminal cases; but no man is to be arrested unless charged with such a crime as will at least justify holding him to bail when taken. And, in general, an arrest may be made four ways: 1. By warrant; 2. By an officer without warrant; 3. By a private person also without a warrant; 4. By a hue and cry.

**290]1. A warrant may be granted in extraordinary cases by the privy council, or secretaries of state;(a)2 but ordinarily by justices of the peace. This they may do in any cases where they have a jurisdiction over the offence, in order to compel the person accused to appear before them;(b) for it would be absurd to give them power to examine an offender unless they had also a power to compel him to attend and submit to such examination. And this extends undoubtedly to all treasons, felonies, and breaches of the peace;3 and also to all such offences as they have power to punish by statute.4 Sir Edward Coke, indeed,(c) hath laid it down that a justice of the peace cannot issue a warrant to apprehend a felon upon bare suspicion; no, not even till an indictment be actually found; and the contrary practice is by others(d) held to be grounded rather upon connivance than the express rule of law, though now by long custom established. A doctrine which would in most cases give a loose to felons to escape without punishment; and therefore Sir Matthew Hale hath com[Editor: illegible character]ated it with invincible authority and strength of reason; maintaining, 1. That a justice of the peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted;(e) and 2. That he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant; because he is a competent judge of the probability offered to him of such suspicion. But in both cases it is fitting to examine upon oath the party requiring a warrant, as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party against whom the warrant is prayed.(f)5 This warrant ought to be under the hand and seal of the justice,6 should set forth the time and place of making, and the cause for which it is made, and should be directed to the *[*291constable or other peace-officer, (or, it may be, to any private person by name,)(g)7 requiring him to bring the party either, generally,8 before any justice of the peace for the county, or only before the justice who granted it; the warrant in the latter case being called a special warrant.(h) A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty;(i) for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion. And a warrant to apprehend all persons guilty of a crime therein specified is no legal warrant; for the point upon which its authority rests is a fact to be decided on a subsequent trial, namely, whether the person apprehended thereupon be really guilty or not.9 It is therefore, in fact, no warrant at all, for it will not justify the officer who acts under it;(k) whereas a warrant properly penned (even though the magistrate who issues it should exceed his jurisdiction) will, by statute 24 Geo. II. c. 44, at all events indemnify the officer who executes the same ministerially. And when a warrant is received by the officer he is bound to execute it so far as the jurisdiction of the magistrate and himself extends. A warrant from the chief or other justice of the court of king’s bench extends all over the kingdom, and is teste’d or dated England; not Oxfordshire, Berks, or other particular county. But the warrant of a justice of the peace in one county, as Yorkshire, must be backed, that is, signed, by a justice of the **292]peace in another, as Middlesex, before it can be executed there. Formerly, regularly speaking, there ought to have been a fresh warrant in every fresh county: but the practice of backing warrants had long prevailed without law, and was at last authorized by statutes 23 Geo. II. c. 26, and 24 Geo. II. c. 55. And now, by statute 13 Geo. III. c. 31, any warrant for apprehending an English offender who may have escaped into Scotland, and vice versa, may be endorsed and executed by the local magistrates, and the offender conveyed back to that part of the united kingdoms in which such offence was committed.10

2. Arrests by officers without warrant may be executed,—1. By a justice of the peace, who may himself apprehend, or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence.(l) 2. The sheriff,11 and, 3. The coroner, may apprehend any felon within the county without warrant. 4. The constable, of whose office we formerly spoke,(m) hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace committed in his view, and carry him before a justice of the peace. And in case of felony actually committed, or a dangerous wounding, whereby felony is likely to ensue, he may upon probable suspicion arrest the felon,12 and for that purpose is authorized (as upon a justice’s warrant) to break open doors, and even to kill the felon, if he cannot otherwise be taken; and if he or his assistants be killed in attempting such arrests, it is murder in all concerned.(n) 5. Watchmen, either those appointed by the statute of Winchester, 13 Edw. I. c. 4, to keep watch and ward in all towns from sunsetting to sunrising, or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly night-walkers, and commit them to custody till the morning.(o)13

3. Any private person (and a fortiori a peace-officer) that is present when any felony is committed is bound by the law to **293]arrest the felon, on pain of fine and imprisonment if he escapes through the negligence of the standers-by.(p) And they may justify breaking open the doors upon following such felon; and if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavouring to make such arrest it is murder.(q) Upon probable suspicion, also, a private person may arrest the felon or other person so suspected,(r)14 but he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more.(s) It is no more, because there is no malicious design to kill; but it amounts to so much, because it would be of most pernicious consequence if, under pretence of suspecting felony, any private person might break open a house or kill another, and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed.

4. There is yet another species of arrest, wherein both officers and private men are concerned, and that is upon a hue and cry raised upon a felony committed. A hue, (from huer, to shout and cry,) hutesium et clamor, is the old common-law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another.(t) It is also mentioned by statute Westm. 1, 3 Edw. I. c. 9, and 4 Edw. I., de officio coronatoris. But the principal statute relative to this matter is that of Winchester, 13 Edw. I. c. 1 and 4, which directs that from thenceforth every county shall be so well kept, that immediately upon robberies and felonies committed, fresh suit shall be made from town to town and from county to county, and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry with all the town and the towns near, and so hue and cry shall be made from town to town until they be taken and delivered to the sheriff. And, that such hue and cry may more effectually be made, the **294]hundred is bound by the same statute, cap. 3, to answer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the hundred(u) in case of any loss by robbery. By statute 27 Eliz. c. 13, no hue and cry is sufficient unless made with both horsemen and footmen. And, by statute 8 Geo. II. c. 16, the constable or like officer refusing or neglecting to make hue and cry forfeits 5l.; and the whole vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein and the felon escapes:15 an institution which hath long prevailed in many of the Eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century, which is said to have effectually delivered that vast territory from the plague of robbers, by making in some places the villages, in others the officers of justice, responsible for all the robberies committed within their respective districts.(w) Hue and cry(x) may be raised either by precept of a justice of the peace, or by a peace-officer or by any private man that knows of a felony. The party raising it must acquaint the constable of the vill with all the circumstances which he knows of the felony and the person of the felon, and thereupon the constable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot; and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection, and indemnification as if acting under a warrant of a justice of the peace. But if a man wantonly or maliciously raises a hue and cry without cause, he shall be severely punished as a disturber of the public peace.(y)

In order to encourage further the apprehending of certain felons, rewards and immunities are bestowed on such as bring them to justice by divers acts of parliament. The statute 4 & 5 W. and M. c. 8 enacts that such as apprehend a highwayman and prosecute him to conviction shall receive a reward of 40l. from the public, to be paid to them (or, if *[*295killed in the endeavour to take him, their executors) by the sheriff of the county, besides the horse, furniture, arms, money, and other goods taken upon the person of such robber, with a reservation of the right of any person from whom the same may have been stolen; to which the statute 8 Geo. II. c. 16 superadds 10l. to be paid by the hundred indemnified by such taking. By statutes 6 & 7 W. III. c. 17 and 15 Geo. II. c. 28, persons apprehending and convicting any offender against those statutes respecting the coinage shall (in case the offence be treason or felony) receive a reward of forty pounds, or ten pounds if it only amount to counterfeiting the copper coin. By statute 10 & 11 W. III. c. 23, any person apprehending and prosecuting to conviction a felon guilty of burglary, house-breaking, horse-stealing, or private larceny to the value of 5s. from any shop, warehouse, coach-house, or stable, shall be excused from all parish offices. And, by statute 5 Anne, c. 31, any person so apprehending and prosecuting a burglar or felonious house-breaker (or, if killed in the attempt, his executors) shall be entitled to a reward of 40l.(z) By statute 6 Geo. I. c. 23, persons discovering, apprehending, and prosecuting to conviction any person taking reward for helping others to their stolen goods, shall be entitled to forty pounds. By statute 14 Geo. II. c. 6, explained by 15 Geo. II. c. 34, any person apprehending and prosecuting to conviction such as steal, or kill with an intent to steal, any sheep or other cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statutes 16 Geo. II. c. 15 and 8 Geo. III. c. 15, persons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds.16

CHAPTER XXII.

OF COMMITMENT AND BAIL.

**296]When a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a justice of the peace;1 and how he is there to be treated I shall next show under the second head of commitment and bail.

The justice before whom such prisoner is brought is bound immediately to examine the circumstances of the crime alleged;2 and to this end, by statute 2 & 3 Ph. and M. c. 10, he is to take in writing the examination of such prisoner and the information of those who bring him:3 which, Mr. Lambard observes,(a) was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men.4 If upon this inquiry it manifestly appears that either no such crime was committed or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must either be committed to prison or give bail; that is, put in securities for his appearance to answer the charge against him.5 This commitment, therefore, being only for safe custody, wherever bail will answer the same intention it ought to be taken, as in most of the inferior crimes; but in felonies and other offences of a *[*297capital nature no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit to save his own life? and what satisfaction or indemnity is it to the public to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity? Upon a principle similar to which the Athenian magistrates, when they took a solemn oath never to keep a citizen in bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled the public money or been guilty of treasonable practices.(b) What the nature of bail is hath been shown in the preceding book,(c) viz., a delivery or bailment of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance; he being supposed to continue in their friendly custody, instead of going to gaol. In civil cases we have seen that every defendant is bailable; but in criminal matters it is otherwise. Let us therefore inquire in what cases the party accused ought or ought not to be admitted to bail.

And, first, to refuse or delay to bail any person bailable is an offence against the liberty of the subject in any magistrate, by the common law,(d) as well as by the statute Westm. 1, 3 Edw. I. c. 15, and the habeas corpus act, 31 Car. II. c. 2. And, lest the intention of the law should be frustrated by the justice’s requiring bail to a greater amount than the nature of the case demands, it is expressly declared, by statute 1 W. and M. st. 2, c. 1, that excessive bail ought not to be required; though what bail should be called excessive must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail he is liable to be fined if the criminal doth not appear.(e)6 Bail may be taken either in court, or in some particular cases by the sheriff,7 coroner, or other magistrate,8 but most usually by the justices of the peace.9 Regularly, in all offences, either against the common **298]law or act of parliament, that are below felony, the offender ought to be admitted to bail, unless it be prohibited by some special act of parliament.(f) In order, therefore, more precisely to ascertain what offences are bailable,—

Let us next see who may not be admitted to bail, or what offences are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute from prisoners convicted of particular offences; for then such imprisonment without bail is part of their sentence and punishment. But where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away wherever the offence is of a very enormous nature; for then the public is entitled to demand nothing less than the highest security that can be given, viz., the body of the accused, in order to insure that justice shall be done upon him if guilty. Such persons therefore, as the author of the Mirror observes,(g) have no other sureties but the four walls of the prison. By the antient common law, before(h) and since(i) the conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail before conviction almost in every case. But the statute Westm. 1, 3 Edw. I. c. 15 takes away the power of bailing in treason and in divers instances of felony. The statutes 23 Hen. VI. c. 9 and 1 & 2 P. and M. c. 13 give further regulations in this matter;10 and upon the whole we may collect(k) that no justice of the peace can bail, 1. Upon an accusation of treason; nor, 2. Of murder; nor, 3. In case of manslaughter if the prisoner be clearly the slayer, and not barely suspected to be so; or if any indictment be found against him; nor, 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another; 5. Persons outlawed; 6. Such as have abjured the realm; 7. *[*299Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused; 8. Persons taken with the mainour, or in the fact of felony; 9. Persons charged with arson; 10 Excommunicated persons, taken by writ de excommunicato capiendo: all which are clearly not admissible to bail by the justices. Others are of a dubious nature, as, 11. Thieves openly defamed and known; 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and 13. Accessories to felony, that labour under the same want of reputation. These seem to be in the discretion of the justices, whether bailable or not. The last class are such as must be bailed upon offering sufficient surety; as, 14. Persons of good fame charged with a bare suspicion of manslaughter or other inferior homicide; 15. Such persons being charged with petit larceny or any felony not before specified; or, 16. With being accessory to any felony. Lastly, it is agreed that the court(l) of king’s bench (or any judge(m) thereof in time of vacation) may bail for any crime whatsoever, be it treason,(n) murder,(o) or any other offence, according to the circumstances of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes would greatly tend to elude the public justice; and yet there are cases (though they rarely happen) in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed by either house of parliament, so long as the *[*300session lasts; or such as are committed for contempts by any of the king’s superior courts of justice.(p)

Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment; there to abide till delivered by due course of law.(q)11 But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity, and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only; though what are so requisite must too often be left to the discretion of the gaolers, who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law (as formerly held) would not justify them in fettering a prisoner unless where he was unruly or had attempted to escape;(r) this being the humane language of our antient lawgivers:(s) “custodes pœnam sibi commissorum non augeant, nec eos torqueant; sed omni sævitia remota, pietateque adhibita, judicia debite exequantur.”

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTION.

**301]The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation.1 And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment.

I. A presentment, generally taken, is a very comprehensive term, including not only presentments properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation,(a) without any bill of indictment laid before them at the suit of the king: as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment(b) before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands and the like;2 and presentments of petty offences in the sheriff’s tourn or court-leet, whereupon the presiding officer may set a fine.3 Other inquisitions may be afterwards traversed and examined; as particularly the coroner’s *[*302inquisition of the death of a man when it finds any one guilty of homicide;4 for in such cases the offender so presented must be arraigned upon this inquisition and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.

II. An indictment(c) is a written accusation of one or more persons of a crime or misdemeanour, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which on the part of our lord the king shall then and there be commanded them.(d) They ought to be freeholders, but to what amount is uncertain;(e) which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described so early as the laws of king Ethelred.(f) “Exeant seniores duodecim thani, et præfectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare.” In the time of king Richard the First (according to Hoveden) the process of electing the grand jury ordained by that prince was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably **303]found too large and inconvenient; but the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes, and not to rest satisfied merely with remote probabilities; a doctrine that might be applied to very oppressive purposes.(g)

The grand jury are sworn to inquire only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. And to so high a nicety was this matter antiently carried, that where a man was wounded in one county and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them; but, by statute 2 & 3 Edw. VI. c. 24, he is now indictable in the county where the party died.5 And, by statute 2 Geo. II. c. 21, if the stroke or poisoning be in England, and the death upon the sea or out of England, or vice versa, the offenders and their accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. And so in some other cases; as, particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII. c. 13, 33 Hen. VIII. c. 23, 35 Hen. VIII. c. 2, and 5 & 6 Edw. VI. c. 11. And counterfeiters, washers, or minishers **304]of the current coin, together with all manner of felons and their accessories, may, by statute 26 Hen. VIII. c. 6, (confirmed and explained by 34 & 35 Hen. VIII. c. 26, §§ 75, 76,) be indicted and tried for those offences, if committed in any part(h) of Wales, before the justices of gaol-delivery and of the peace in the next adjoining county of England, where the king’s writ runneth: that is at present in the county of Hertford or Salop, and not, as it should seem, in the county of Chester or Monmouth; the one being a county palatine where the king’s writ did not run, and the other a part of Wales, in 26 Hen. VIII.(i) Murders, also, whether committed in England or in foreign parts,(k) may, by virtue of the statute 33 Hen. VIII. c. 23, be inquired of and tried by the king’s special commission in any shire or place in the kingdom. By statute 10 & 11 W. III. c. 25, all robberies and other capital crimes committed in Newfoundland may be inquired of and tried in any county in England. Offences against the black act, 9 Geo. I. c. 22, may be inquired of and tried in any county of England, at the option of the prosecutor.(l) So felonies in destroying turnpikes or works upon navigable rivers, erected by authority of parliament, may, by statutes 8 Geo. II. c. 20 and 13 Geo. III. c. 84, be inquired of and tried in any adjacent county. By statute 26 Geo. II. c. 19, plundering or stealing from any vessel in distress or wrecked, or breaking any ship contrary to 12 Anne, st. 2, c. 18,(m) may be prosecuted either in the county where the fact is committed or in any county next adjoining; and if committed in Wales, then in the next adjoining English county: by which is understood to be meant such English county as, by the statute 26 Hen. VIII. above mentioned, had before a concurrent jurisdiction with the great sessions of felonies committed in Wales.(n) Felonies committed out of the realm, in burning or destroying the king’s ships, *[*305magazines, or stores, may, by statute 12 Geo. III. c. 24, be inquired of and tried in any county of England, or in the place where the offence is committed. By statute 13 Geo. III. c. 63, misdemeanours committed in India may be tried upon informations or indictments in the court of king’s bench in England; and a mode is marked out for examining witnesses by commission, and transmitting their depositions to the court. But, in general, all offences must be inquired into as well as tried in the county where the fact is committed. Yet, if larceny be committed in one county and the goods carried into another, the offender may be indicted in either, for the offence is complete in both;(o) or he may be indicted in England for larceny in Scotland and carrying the goods with him into England, or vice versa; or for receiving in one part of the united kingdom goods that have been stolen in another.(p) But for robbery, burglary, and the like, he can only be indicted where the fact was actually committed; for though the carrying away and keeping of the goods is a continuation of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that jurisdiction. And if a person be indicted in one county for larceny of goods originally taken in another, and be thereof convicted or stands mute, he shall not be admitted to his clergy, provided the original taking be attended with such circumstances as would have ousted him of his clergy by virtue of any statute made previous to the year 1691.(q)6

When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill “ignoramus,” or, we know nothing of it; intimating that, though the facts might possibly be true, that truth did not appear to them: but now they assert in English more absolutely “not a true bill,” or (which is the better way) “not found,” and then the party is discharged without further answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then **306]endorse upon it “a true bill,” antiently “billa vera.” The indictment is then said to be found, and the party stands indicted. But to find a bill there must at least twelve of the jury agree; for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree;(r) and the indictment, when so found, is publicly delivered into court.

Indictments must have a precise and sufficient certainty.7 By statute 1 Hen. V. c. 5, all indictments must set forth the Christian name, surname, and addition of the state and degree, mystery, town or place, and the county of the offender; and all this to identify his person.8 The time and place are also to be ascertained by naming the day and township in which the fact was committed; though a mistake in these points is in general not held to be material, provided the time be laid previous to the finding of the indictment and the place to be within the jurisdiction of the court, unless where the place is laid not merely as a venue, but as part of the description of the fact.(s)9 But sometimes the time may be very material, where there is any situation in point of time assigned for the prosecution of offenders, as by the statute 7 Will. III. c. 3, which enacts that no prosecution shall be had for any of the treasons or misprisions therein mentioned, (except an assassination designed or attempted on the person of the king,) unless the bill of indictment be found within three years after the offence committed;(t) and in case of murder, the time of the death must be laid within a year and a day after the mortal stroke was given. The offence itself must also be set forth with clearness and certainty; and in some crimes particular words of art must be used, which are so appropriated by the law to express the precise idea which it entertains of the *[*307offence, that no other words, however synonymous they may seem, are capable of doing it. Thus, in treason the facts must be laid to be done “treasonably and against his allegiance,” antiently “proditorie et contra ligeantiæ suæ debitum,” else the indictment is void. In indictments for murder it is necessary to say that the party indicted “murdered,” not “killed,” or “slew,” the other; which, till the late statute, was expressed in Latin by the word “murdravit.”(u) In all indictments for felonies the adverb “feloniously,” “felonice,” must be used; and for burglaries, also, “burglariter,” or, in English, “burglariously:” and all these to ascertain the intent. In rapes the word “rapuit” or “ravished” is necessary, and must not be expressed by any periphrasis, in order to render the crime certain. So in larcenies, also, the words “felonice cepit et asportavit, feloniously took and carried away,” are necessary to every indictment, for these only can express the very offence. Also, in indictments for murder, the length and depth of the wound should in general be expressed, in order that it may appear to the court to have been of a mortal nature; but if it goes through the body, then its dimensions are immaterial, for that is apparently sufficient to have been the cause of the death. Also, where a limb or the like is absolutely cut off, there such description is impossible.(v) Lastly, in indictments the value of the thing which is the subject or instrument of the offence must sometimes be expressed. In indictments for larcenies this is necessary, that it may appear whether it be grand or petit larceny, and whether entitled or not to the benefit of clergy;10 in homicide of all sorts it is necessary, as the weapon with which it is committed is forfeited to the king as a deodand.11

The remaining methods of prosecution are, without any previous finding by a jury, to fix the authoritative stamp of verisimilitude upon the accusation. One of these, by the common law, was when a thief was taken with the mainour; that is, with the thing stolen upon him in manu. For he might, when so detected flagrante delicto, be brought into court, arraigned and tried without indictment; as, by the **308]Danish law, he might be taken and hanged upon the spot, without accusation or trial.(w) But this proceeding was taken away by several statutes in the reign of Edward the Third,(x) though in Scotland a similar process remains to this day.(y) So that the only species of proceeding at the suit of the king, without a previous indictment or presentment by a grand jury, now seems to be that of information.

III. Informations are of two sorts: first, those which are partly at the suit of the king, and partly at that of a subject; and secondly, such as are only in the name of the king. The former are usually brought upon penal statutes, which inflict a penalty upon conviction of the offender, one part to the use of the king, and another to the use of the informer, and are a sort of qui tam actions, (the nature of which was explained in a former book,)(z) only carried on by a criminal instead of a civil process; upon which I shall therefore only observe that, by the statute 31 Eliz. c. 5, no prosecution upon any penal statute, the suit and benefit whereof are limited in part to the king and in part to the prosecutor, can be brought by any common informer after one year is expired since the commission of the offence; nor on behalf of the crown after the lapse of two years longer; nor, where the forfeiture is originally given only to the king, can such prosecution be had after the expiration of two years from the commission of the offence.12

The informations that are exhibited in the name of the king alone are also of two kinds: first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the attorney-general; secondly, those in which, though the king is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are filed by the king’s coroner and attorney in the court of king’s bench, usually called the master of the crown-office, who is for this purpose the standing officer of the public. The objects of the king’s own prosecutions, filed ex officio by his own attorney-general, are properly such **309]enormous misdemeanours as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences so high and dangerous, in the punishment or prevention of which a moment’s delay would be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal; which power, thus necessary not only to the ease and safety but even to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations, filed by the master of the crown-office upon the complaint or relation of a private subject, are any gross and notorious misdemeanours, riots, batteries, libels, and other immoralities of an atrocious kind,(a) not peculiarly tending to disturb the government, (for those are left to the care of the attorney-general,) but which, on account of their magnitude or pernicious example, deserve the most public animadversion.13 And when an information is filed, either thus, or by the attorney-general ex officio, it must be tried by a petit jury of the county where the offence arises; after which, if the defendant be found guilty, the court must be resorted to for his punishment.14

There can be no doubt but that this mode of prosecution by information (or suggestion) filed on record by the king’s attorney-general, or by his coroner or master of the crown-office, in the court of king’s bench, is as antient as the common law itself.(b) For, as the king was bound to prosecute, or at least to lend the sanction of his name to a prosecutor, whenever the grand jury informed him upon their oaths that there was a sufficient ground for instituting a criminal suit, so when these his immediate officers were otherwise sufficiently assured that a man had committed a gross misdemeanour, either personally against the king or his government, or against the public peace and good order, they were at liberty, without waiting for any further intelligence, to convey that information to the court of king’s bench by a *[*310suggestion on record, and to carry on the prosecution in his majesty’s name. But these informations (of every kind) are confined by the constitutional law to mere misdemeanours only; for, whenever any capital offence is charged, the same law requires that the accusation be warranted by the oath of twelve men before the party shall be put to answer it. And as to those offences in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction and were carried on in a legal and regular course in his majesty’s court of king’s bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given, by the same judges, as if the prosecution had originally been by indictment. But when the statute 3 Hen. VII. c. 1 had extended the jurisdiction of the court of starchamber, the members of which were the sole judges of the law, the fact, and the penalty, and when the statute 11 Hen. VII. c. 3 had permitted informations to be brought by any informer, upon any penal statute not extending to life or member, at the assizes or before the justices of the peace, who were to hear and determine the same according to their own discretion, then it was that the legal and orderly jurisdiction of the court of king’s bench fell into disuse and oblivion, and Empson and Dudley, (the wicked instruments of king Henry VII.,) by hunting out obsolete penalties, and this tyrannical mode of prosecution, with other oppressive devices,(c) continually harassed the subject and shamefully enriched the crown. The latter of these acts was soon indeed repealed, by statute 1 Hen. VIII. c. 6; but the court of starchamber continued in high vigour, and daily increasing its authority, for more than a century longer, till finally abolished by statute 16 Car. I. c. 10.

Upon this dissolution, the old common-law(d) authority of the court of king’s bench as the custos morum of the nation, being found necessary to reside somewhere, for the peace and good government of the kingdom, was again revived in **311]practice.(e) And it is observable that in the same act of parliament which abolished the court of starchamber, a conviction by information is expressly reckoned up as one of the legal modes of conviction of such persons as should offend a third time against the provisions of that statute.(f) It is true Sir Matthew Hale, who presided in this court soon after the time of such revival, is said(g) to have been no friend to this method of prosecution; and, if so, the reason of such his dislike was probably the ill use which the master of the crown-office then made of his authority by permitting the subject to be harassed with vexatious informations, whenever applied to by any malicious or revengeful prosecutor, rather than his doubt of their legality or propriety upon urgent occasions.(h) For the power of filing informations, without any control, then resided in the breast of the master; and, being filed in the name of the king, they subjected the prosecutor to no costs, though on trial they proved to be groundless. This oppressive use of them, in the times preceding the revolution, occasioned a struggle, soon after the accession of king William,(i) to procure a declaration of their illegality by the judgment of the court of king’s bench. But Sir John Holt, who then presided there, and all the judges, were clearly of opinion that this proceeding was grounded on the common law and could not be then impeached. And in a few years afterwards a more temperate remedy was applied in parliament by statute 4 & 5 W. and M. c. 18, which enacts that the clerk of the crown shall not file any information without express direction from the court of king’s bench, and that every prosecutor, permitted to promote such information, shall give security by a recognizance of twenty pounds (which now seems to be too small a sum) to prosecute the same with effect, and to pay costs to the defendant in case he be acquitted thereon, unless the judge, who tries the information, shall certify there was reasonable cause for filing it; and, at all events, to pay costs, unless **312]the information shall be tried within a year after issue joined. But there is a proviso in this act that it shall not extend to any other informations than those which are exhibited by the master of the crown-office: and, consequently, informations at the king’s own suit, filed by his attorney-general, are no way restrained thereby.

There is one species of informations still further regulated by statute 9 Anne, c. 20, viz., those in the nature of a writ of quo warranto; which was shown, in the preceding book,(k) to be a remedy given to the crown against such as had usurped or intruded into any office or franchise. The modern information tends to the same purpose as the antient writ, being generally made use of to try the civil rights of such franchises; though it is commenced in the same manner as other informations are, by leave of the court or at the will of the attorney-general, being properly a criminal prosecution, in order to fine the defendant for his usurpation as well as to oust him from his office, yet usually considered at present as merely a civil proceeding.15

These are all the methods of prosecution at the suit of the king. There yet remains another, which is merely at the suit of the subject, and is called an appeal.

IV. An appeal in the sense wherein it is here used does not signify any complaint to a superior court of an injustice done by an inferior one, which is the general use of the word; but it here means an original suit at the time of its first commencement.(l) An appeal, therefore, when spoken of as a criminal prosecution, denotes an accusation by a private subject against another for some heinous crime, demanding punishment on account of the particular injury suffered rather than for the offence against the public. As this method of prosecution is still in force, I cannot omit to mention it; but as it is very little in use, on account of the *[*313great nicety required in conducting it, I shall treat of it very briefly, referring the student for more particulars to other more voluminous compilations.(m)

This private process for the punishment of public crimes had probably its original in those times when a private pecuniary satisfaction, called a weregild, was constantly paid to the party injured, or his relations, to expiate enormous offences. This was a custom derived to us, in common with other northern nations,(n) from our ancestors, the antient Germans; among whom, according to Tacitus,(o) “luitur homicidium certo armentorum ac pecorum numero; recipitque satisfactionem universa domus.”(p) In the same manner, by the Irish Brehon law, in case of murder, the Brehon or judge was used to compound between the murderer and the friends of the deceased, who prosecuted him, by causing the malefactor to give unto them, or to the child or wife of him that was slain, a recompense which they called an eriach.(q) And thus we find, in our Saxon laws, (particularly those of king Athelstan,)(r) the several weregilds for homicide established in progressive order from the death of the ceorl or peasant up to that of the king himself.(s) And in the laws of king Henry I.(t) we have an account of what other offences were then redeemable by weregild, and what were not so.(u) As, therefore, during the continuance of this custom, a process was certainly given for recovering the weregild by the party to whom it was due, it seems that, when *[*314these offences by degrees grew no longer redeemable, the private process was still continued, in order to insure the infliction of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence.

But though appeals were thus in the nature of prosecutions for some atrocious injury committed more immediately against an individual, yet it also was antiently permitted that any subject might appeal another subject of high treason, either in the courts of common law,(w) or in parliament, or (for treasons committed beyond the seas) in the court of the high constable and marshal. The cognizance of appeals in the latter still continues in force; and so late as 1631 there was a trial by battel awarded in the court of chivalry on such an appeal of treason;(x) but that in the first was virtually abolished(y) by the statutes 5 Edw. III. c. 9, and 25 Edw. III. c. 24, and in the second, expressly, by statute 1 Hen. IV. c. 14. So that the only appeals now in force, for things done within the realm, are appeals of felony and mayhem.

An appeal of felony may be brought for crimes committed either against the parties themselves or their relations. The crimes against the parties themselves are larceny, rape, and arson. And for these, as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burned may institute this private process. The only crime against one’s relations for which an appeal can be brought is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation: but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was also confined by an ordinance of king Henry the First, to the four nearest degrees of blood(z) It is given to the wife on account of the loss of her husband: therefore, if she marries again, before or pending her appeal, it is lost and gone; or if she marries after judgment, she shall not demand execution. The heir, as was said, must also be heir male, and such a one as was the **315]next heir by the course of the common law, at the time of the killing of the ancestor. But this rule hath three exceptions:—1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the appeal; 2. If there be no wife, and the heir be accused of the murder, the person who next to him would have been heir male shall bring the appeal; 3. If the wife kills her husband, the heir may appeal her of the death And, by the statute of Glocester, 6 Edw. I. c. 9, all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party: which seems to be only declaratory of the old common law; for in the Gothic constitutions we find the same “præscriptio annalis, quæ currit adversus actorem, si de homicida ei non constet intra annum a cæde facta, nec quenquam interea arguat et accuset.”(a)

These appeals may be brought previous to any indictment; and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. In like manner as by the old Gothic constitution, if any offender gained a verdict in his favour when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offence;(b) but, on the contrary, if he made his peace with the king, still he might be prosecuted at the suit of the party. And so, with us, if a man be acquitted on an indictment of murder, or found guilty and pardoned by the king, still he ought not (in strictness) to go at large, but be imprisoned or let to bail till the year and day be past, by virtue of the statute 3 Hen. VII. c. 1, in order to be forthcoming to answer any appeal for the same felony, not having as yet been punished for it, though if he hath been found guilty of manslaughter on an indictment, and hath had the benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed; for it is a maxim in law that “nemo bis punitur pro eodem delicto.” Before this statute was made, it was not usual to indict a man for homicide within the time limited for appeals, which produced very great inconvenience, of which more hereafter.(c)

**316]If the appellee be acquitted, the appellor (by virtue of the statute of Westm. 2, 13 Edw. I. c. 12) shall suffer one year’s imprisonment, and pay a fine to the king, besides restitution of damages to the party for the imprisonment and infamy which he has sustained; and if the appellor be incapable to make restitution, his abettors shall do it for him and also be liable to imprisonment. This provision, as was foreseen by the author of Fleta,(d) proved a great discouragement to appeals; so that thenceforward they ceased to be in common use.

If the appellee be found guilty, he shall suffer the same judgment as if he had been convicted by indictment, but with this remarkable difference:—that on an indictment, which is at the suit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong, the king can no more pardon it than he can remit the damages recovered on an action of battery.(e) In like manner as while the weregild continued to be paid as a fine for homicide it could not be remitted by the king’s authority.(f) And the antient usage was, so late as Henry the Fourth’s time, that all the relations of the slain should drag the appellee to the place of execution;(g) a custom founded upon that savage spirit of family resentment which prevailed universally through Europe after the irruption of the northern nations, and is peculiarly attended to in their several codes of law, and which prevails even now among the wild and untutored inhabitants of America; as if the finger of nature had pointed it out to mankind in their rude and uncultivated state.(h) However, the punishment of the offender may be remitted and discharged by the concurrence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may *[*317discharge an appeal;(i) “nam quilibet potest renunciare juri pro se introducto.”16

These are the several methods of prosecution instituted by the laws of England for the punishment of offences, of which that by indictment is the most general. I shall therefore confine my subsequent observations principally to this method of prosecution; remarking, by the way, the most material variations that may arise from the method of proceeding by either information or appeal.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

*[*318We are next, in the fourth place, to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it. We have hitherto supposed the offender to be in custody before the finding of the indictment, in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he hath fled or secretes himself in capital cases, or hath not in smaller misdemeanours been bound over to appear at the assizes or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And if it be found, then process must issue to bring him into court; for the indictment cannot be tried unless he personally appears, according to the rules of equity in all cases, and the express provision of statute 28 Edw. III. c. 3 in capital ones, that no man shall be put to death without being brought to answer by due process of law.

The proper process on an indictment for any petit misdemeanour, or on a [Editor: illegible character] penal statute, is a writ of venire facias, which is in the nature of a summons to cause the party to appear. And if by the return to such venire it appears that the party hath lands in the county whereby he may be distrained, then a distress infinite shall be issued from time to time till he appears. But if the sheriff returns that he hath no lands in his bailiwick, (then, upon his non-appearance,) a writ of capias **319]shall issue, which commands the sheriff to take his body and have him at the next assizes; and if he cannot be taken upon the first capias, a second and third shall issue, called an alias and a pluries capias. But on indictments for treason or felony a capias is the first process; and for treason or homicide only one shall be allowed to issue,(a) or two in the case of other felonies, by statute 25 Edw. III. c. 14, though the usage is to issue only one in any felony, the provisions of this statute being in most cases found impracticable.(b) And so, in the case of misdemeanours, it is now the usual practice for any judge of the court of king’s bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant.1 But if he absconds, and it is thought proper to pursue him to an outlawry, then a greater exactness is necessary; for, in such case, after the several writs have issued in a regular number, according to the nature of the respective crimes, without any effect, the offender shall be put in the exigent in order to his outlawry: that is, he shall be exacted, proclaimed, or required to surrender at five county courts; and if he be returned quinto exactus, and does not appear at the fifth exaction or requisition, then he is adjudged to be outlawed, or put out of the protection of the law, so that he is incapable of taking the benefit of it in any respect, either by bringing actions or otherwise.

The punishment for outlawries upon indictments for misdemeanours is the same as for outlawries upon civil actions, (of which, and the previous process by writs of capias, exigi facias, and proclamation, we spoke in the preceding book,)(c) viz., forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender had been found guilty by his country.(d)2 His life is, however, still under the protection of the law, as hath formerly been **320]observed;(e) so that, though antiently an outlawed felon was said to have caput lupinum, and might be knocked on the head like a wolf by any one that should meet him,(f) because, having renounced all law, he was to be dealt with as in a state of nature, when every one that should find him might slay him, yet now, to avoid such inhumanity, it is holden that no man is entitled to kill him wantonly or wilfully, but in so doing is guilty of murder,(g) unless it happens in the endeavour to apprehend him;(h) for any person may arrest an outlaw on a criminal prosecution, either of his own head or by writ or warrant of capias utlagatum, in order to bring him to execution. But such outlawry may be frequently reversed by writ of error, the proceedings therein being (as it is fit they should be) exceedingly nice and circumstantial; and if any single minute point be omitted or misconducted, the whole outlawry is illegal and may be reversed, upon which reversal the party accused is admitted to plead to and defend himself against the indictment.

Thus much for process to bring in the offender after indictment found; during which stage of the prosecution it is that writs of certiorari facias are usually had, though they may be had at any time before trial, to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction into the court of king’s bench,3 which is the sovereign ordinary court of justice in causes criminal. And this is frequently done for one of these four purposes: either, 1. To consider and determine the validity of appeals or indictments, and the proceedings thereon, and to quash or confirm them as there is cause; or, 2. Where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed, in order to have the prisoner or defendant tried at the bar of the court of king’s bench, or before the justices of nisi prius; or, 3. It is so removed in order to plead the king’s pardon there; or, 4. To issue process of outlawry against the offender in those *[*321counties or places where the process of the inferior judges will not reach him.(i) Such writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supersedes the jurisdiction of such inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal, unless the court of king’s bench remands the record to the court below, to be there tried and determined. A certiorari may be granted at the instance of either the prosecutor or the defendant: the former as a matter of right, the latter as a matter of discretion; and therefore it is seldom granted to remove indictments from the justices of gaol delivery, or after issue joined or confession of the fact in any of the courts below.(k)4

At this stage of prosecution also it is that indictments found by the grand jury against a peer must, in consequence of a writ of certiorari, be certified and transmitted into the court of parliament, or into that of the lord high steward of Great Britain; and that, in places of exclusive jurisdiction, as the two universities, indictments must be delivered (upon challenge and claim of cognizance) to the courts therein established by charter and confirmed by act of parliament, to be there respectively tried and determined.

CHAPTER XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.

**322]When the offender either appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to be arraigned thereon; which is the fifth stage of criminal prosecution.

To arraign1 is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment.(a) The prisoner is to be called to the bar by his name; and it is laid down in our antient books(b) that, though under an indictment of the highest nature, he must be brought to the bar without irons or any manner of shackles or bonds, unless there be evident danger of an escape, and then he may be secured with irons. But yet, in Layer’s case, ad 1722, a difference was taken between the time of arraignment and the time of trial; and accordingly the prisoner stood at the bar in chains during the time of his arraignment.(c)2

**323]When he is brought to the bar, he is called upon by name to hold up his hand; which, though it may seem a trifling circumstance, yet is of this importance, that by the holding up of his hand constat de persona, and he owns himself to be of that name by which he is called.(d) However, it is not an indispensable ceremony; for, being calculated merely for the purpose of identifying the person, any other acknowledgment will answer the purpose as well: therefore, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient.(e)

Then the indictment is to be read to him distinctly in the English tongue, (which was law even while all other proceedings were in Latin,) that he may fully understand his charge. After which it is to be demanded of him whether he be guilty of the crime whereof he stands indicted, or not guilty. By the old common law the accessory could not be arraigned till the principal was attainted, unless he chose it: for he might waive the benefit of the law; and therefore principal and accessory might, and may still, be arraigned, and plead, and also be tried, together. But otherwise, if the principal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessory in any of these cases could not be arraigned; for nonconstitit whether any felony was committed or no, till the principal was attainted; and it might so happen that the accessory should be convicted one day and the principal acquitted the next, which would be absurd. However, this absurdity could only happen where it was possible that a trial of the principal might be had subsequent to that of the accessory; and therefore the law still continues that the accessory shall not be tried so long as the principal remains liable to be tried hereafter. But, by statute *[*3241 Anne, c. 9, if the principal be once convicted, and before attainder (that is, before he receives judgment of death or outlawry) he is delivered by pardon, the benefit of clergy, or otherwise; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, so as never to be convicted at all; in any of these cases in which no subsequent trial can be had of the principal, the accessory may be proceeded against as if the principal felon had been attainted; for there is no danger of future contradiction.3 And upon the trial of the accessory, as well after as before the conviction of the principal, it seems to be the better opinion, and founded on the true spirit of justice,(f) that the accessory is at liberty (if he can) to controvert the guilt of his supposed principal, and to prove him innocent of the charge, as well in point of fact as in point of law.4

When a criminal is arraigned, he either stands mute, or confesses the fact; which circumstances we may call incidents to the arraignment; or else he pleads to the indictment, which is to be considered as the next stage of proceedings. But, first, let us observe these incidents to the arraignment,—of standing mute, or confession.

I. Regularly, a prisoner is said to stand mute when, being arraigned for treason or felony, he either, 1. Makes no answer at all; or, 2. Answers foreign to the purpose, or with such matter as is not allowable; and will not answer otherwise; or, 3. Upon having pleaded not guilty refuses to put himself upon the country.(g) If he says nothing, the court ought, ex officio, to impanel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei. If the latter appears to be the case, the judges of the court (who are to be of counsel for the prisoner, and to see that he hath law and justice) shall proceed to the trial, and examine all points as if he had pleaded not guilty.(h)5 But whether judgment of death can be given against such a **325]prisoner who hath never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined.(i)

If he be found to be obstinately mute, (which a prisoner hath been held to be that hath cut out his own tongue,)(k) then, if it be on an indictment of high treason, it hath long been clearly settled that standing mute is an equivalent to a conviction, and he shall receive the same judgment and execution.(l) And as in this the highest crime, so also in the lowest species of felony, viz., in petit larceny, and in all misdemeanours, standing mute hath always been equivalent to conviction. But upon appeals or indictments for other felonies, or petit treason, the prisoner was not, by the antient law, looked upon as convicted so as to receive judgment for the felony; but should for his obstinacy have received the terrible sentence of penance, or peine (which, as will appear presently, was probably nothing more than a corrupted abbreviation of prisone) forte et dure.

Before this was pronounced, the prisoner had not only trina admonitio, but also a respite of a few hours, and the sentence was distinctly read to him, that he might know his danger;(m) and, after all, if he continued obstinate, and his offence was clergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it.(n) Thus tender was the law of inflicting this dreadful punishment; but if no other means could prevail, and the prisoner (when charged with a capital felony) continued stubbornly mute, the judgment was then given against him, without any distinction of sex or degree. A judgment which was purposely ordained to be exquisitely severe, that by that very means it might rarely be put in execution.6

The rack, or question, to extort a confession from criminals, is a practice of a different nature; this having been only **326]used to compel a man to put himself upon his trial; that being a species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once, when the dukes of Exeter and Suffolk, and other ministers of Henry IV., had laid a design to introduce the civil law in this kingdom as the rule of government, for a beginning thereof they erected a rack for torture, which was called in derision the Duke of Exeter’s daughter, and still remains in the Tower of London;(o) where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth.(p) But when, upon the assassination of Villiers, duke of Buckingham, by Felton, it was proposed in the privy council to put the assassin to the rack in order to discover his accomplices, the judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England.(q) It seems astonishing that this usage of administering the torture should be said to arise from a tenderness to the lives of men; and yet this is the reason given for its introduction in the civil law, and its subsequent adoption by the French and other foreign nations;(r) viz., because the laws cannot endure that any man should die upon the evidence of a false, or even a single, witness, and therefore contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man’s virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves! But there needs only to state accurately,(s) in order most effectually to expose this inhuman species of mercy, the uncertainty of which, as a test and criterion of truth, was long ago very elegantly pointed out by Tully, though he lived in a state wherein it was *[*327usual to torture slaves in order to furnish evidence: “tamen,” says he, “illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis, regit quæsitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur.”(t)

The English judgment of penance for standing(u) mute was as follows: that the prisoner be remanded to the prison from whence he came, and put into a low, dark chamber, and there be laid on his back on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prison-door; and in this situation this should be alternately his daily diet till he died, or (as antiently the judgment ran) till he answered.(v)

It hath been doubted whether this punishment subsisted at the common law,(w) or was introduced in consequence of the statute Westm. 1, 3 Edw. I. c. 12,(x) which seems to be the better opinion. For not a word of it is mentioned in Glanvil or Bracton, or in any antient author, case, or record (that hath yet been produced) previous to the reign of Edward I.; but there are instances on record in the reign of Henry III.(y) where persons accused of felony, and standing mute, were tried in a particular manner, by two successive juries, and convicted; and it is asserted by the judges in 8 Henry IV. that, by the common law before the statute, standing mute on an appeal amounted to a conviction of the felony.(z) This statute of Edward I. directs such persons *[*328“as will not put themselves upon inquests of felonies before the judges at the suit of the king, to be put into hard and strong prison (soient mys en la prisone forte et dure) as those which refuse to be at the common law of the land.” And, immediately after this statute, the form of the judgment appears in Fleta and Britton to have been only a very strait confinement in prison, with hardly any degree of sustenance; but no weight is directed to be laid upon the body, so as to hasten the death of the miserable sufferer; and, indeed, any surcharge of punishment on persons adjudged to penance, so as to shorten their lives, is reckoned by Horne in the Mirror(a) as a species of criminal homicide. It also clearly appears, by a record of 31 Edw. III.,(b) that the prisoner might then possibly subsist for forty days under this lingering punishment. I should therefore imagine that the practice of loading him with weights, or, as it was usually called, pressing him to death, was gradually introduced between 31 Edw. III. and 8 Hen. IV., at which last period it first appears upon our books;(c) being intended as a species of mercy to the delinquent, by delivering him the sooner from his torment: and hence I presume it also was that the duration of the penance was then first(d) altered; and, instead of continuing till he answered, it was directed to continue till he died, which must very soon happen under an enormous pressure.

The uncertainty of its original, the doubts that were conceived of its legality, and the repugnance of its theory (for it was rarely carried into practice) to the humanity of the laws of England, all concurred to require a legislative abolition of this cruel process, and a restitution of the antient common law; whereby the standing mute in felony, as well as in treason and in trespass, amounted to a confession of the charge. Or, if the corruption of the blood and the consequent escheat in felony had been removed, the judgment of peine forte et dure might perhaps have still innocently remained, **329]as a monument of the savage rapacity with which the lordly tyrants of feodal antiquity hunted after escheats and forfeitures; since no one would ever have been tempted to undergo such a horrid alternative. For the law was, that by standing mute and suffering this heavy penance the judgment, and of course the corruption of the blood and escheat of the lands, were saved in felony and petit treason, though not the forfeiture of the goods: and therefore this lingering punishment was probably introduced, in order to extort a plea; without which it was held that no judgment of death could be given, and so the lord lost his escheat. But in high treason, as standing mute is equivalent to a conviction, the same judgment, the same corruption of blood, and the same forfeitures always attended it as in other cases of conviction.(e) And very lately, to the honour of our laws, it hath been enacted, by statute 12 Geo. III. c. 20, that every person who being arraigned for felony and piracy shall stand mute or not answer directly to the offence shall be convicted of the same, and the same judgment and execution (with all their consequences in every respect) shall be thereupon awarded as if the person had been convicted by verdict or confession of the crime.7 And thus much for the demeanour of a prisoner upon his arraignment by standing mute; which now, in all cases, amounts to a constructive confession.

II. The other incident to arraignments, exclusive of the plea, is the prisoner’s actual confession of the indictment. Upon a simple and plain confession, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it and plead to the indictment.(f)

But there is another species of confession which we read much of in our antient books, of a far more complicated kind, which is called approvement. And that is when a **330]person indicted of treason or felony, and arraigned for the same, doth confess the fact before plea pleaded, and appeals or accuses others, his accomplices, in the same crime in order to obtain his pardon. In this case he is called an approver or prover, probator, and the party appealed or accused is called the appellee. Such approvement can only be in capital offences; and it is, as it were, equivalent to an indictment, since the appellee is equally called upon to answer it: and if he hath no reasonable and legal exceptions to make to the person of the approver, which indeed are very numerous, he must put himself upon his trial, either by battel or by the country, and if vanquished or found guilty must suffer the judgment of the law, and the approver shall have his pardon ex debito justitiæ. On the other hand, if the appellee be conqueror or acquitted by the jury, the approver shall receive judgment to be hanged, upon his own confession of the indictment; for the condition of his pardon has failed, viz: the conviction of some other person, and therefore his conviction remains absolute.

But it is purely in the discretion of the court to permit the approver thus to appeal or not; and, in fact, this course of admitting approvements hath been long disused; for the truth was, as Sir Matthew Hale observes, that more mischief hath arisen to good men by these kind of approvements, upon false and malicious accusations of desperate villains, than benefit to the public by the discovery and conviction of real offenders. And therefore, in the times when such appeals were more frequently admitted, great strictness and nicety were held therein;(g) though since their discontinuance the doctrine of approvements is become a matter of more curiosity than use. I shall only observe that all the good, whatever it be, that can be expected from this method of approvement is fully provided for in the cases of coining, robbery, burglary, house-breaking, horse-stealing, and larceny to the value of five shillings, from shops, warehouses, stables, and coach-houses, by statutes 4 & 5 W. and M. c. 8, *[*3316 & 7 W. III. c. 17, 10 & 11 W. III. c. 23, and 5 Anne, c. 31, which enact that if any such offender, being out of prison, shall discover two or more persons who have committed the like offences, so as they may be convicted thereof, he shall, in case of burglary or house-breaking, receive a reward of 40l., and in general be entitled to a pardon of all capital offences excepting only murder and treason; and of them also in the case of coining.(h) And if any such person, having feloniously stolen any lead, iron, or other metal, shall discover and convict two offenders of having illegally bought or received the same, he shall, by virtue of statute 29 Geo. II. c. 30, be pardoned for all such felonies committed before such discovery. It hath also been usual for the justices of the peace, by whom any persons charged with felony are committed to gaol, to admit some one of their accomplices to become a witness (or, as it is generally termed, king’s evidence) against his fellows; upon an implied confidence, which the judges of gaol-delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offence of the same degree.(i)8

CHAPTER XXVI.

OF PLEA, AND ISSUE.

**332]We are now to consider the plea of the prisoner, or defensive matter alleged by him on his arraignment, if he does not confess or stand mute. This is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue.

Formerly there was another plea, now abrogated, that of sanctuary; which is, however, necessary to be lightly touched upon, as it may give some light to many parts of our antient law: it being introduced and continued during the superstitious veneration that was paid to consecrated ground in the times of popery. First, then, it is to be observed that if a person accused of any crime (except treason, wherein the crown, and sacrilege, wherein the church, was too nearly concerned) had fled to any church or churchyard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offence, and thereupon took the oath in that case provided, viz., that he abjured the realm, and would depart from thence forthwith, at the port that should be assigned him, and would never return without leave from the king; he by this means saved his life if he observed the conditions of the oath by going with a cross in *[*333his hand and with all convenient speed to the port assigned and embarking. For if, during this forty days’ privilege of sanctuary, or in his road to the seaside, he was apprehended and arraigned in any court for this felony, he might plead the privilege of sanctuary, and had a right to be remanded if taken out against his will.(a) But by this abjuration his blood was attainted, and he forfeited all his goods and chattels.(b) The immunity of these privileged places was very much abridged by the statutes 27 Hen. VIII. c. 19, and 32 Hen. VIII. c. 12. And now, by the statute 21 Jac. I. c. 28, all privilege of sanctuary, and abjuration consequent thereupon, is utterly taken away and abolished.

Formerly also the benefit of clergy used to be pleaded before trial or conviction, and was called a declinatory plea; which was the name also given to that of sanctuary.(c) But, as the prisoner upon a trial has a chance to be acquitted and totally discharged, and if convicted of a clergyable felony is entitled equally to his clergy after as before conviction, this course is extremely disadvantageous; and therefore the benefit of clergy is now very rarely pleaded, but, if found requisite, is prayed by the convict before judgment is passed upon him.1

I proceed, therefore, to the five species of pleas before mentioned.

I. A plea to the jurisdiction is where an indictment is taken before a court that hath no cognizance of the offence; as if a man be indicted for a rape at the sheriff’s tourn, or for treason at the quarter sessions: in these or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged.(d)2

II. A demurrer to the indictment. This is incident to criminal cases as well as civil when the fact alleged is *[*334allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man were indicted for feloniously stealing a greyhound, which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass, to steal it: in this case the party indicted may demur to the indictment; denying it to be felony, though he confesses the act of taking it. Some have held(e) that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution as if convicted by verdict. But this is denied by others,(f) who hold that in such case he shall be directed and received to plead the general issue, not guilty, after a demurrer determined against him.3 Which appears the more reasonable, because it is clear that if the prisoner freely discovers the fact in court, and refers it to the opinion of the court whether it be felony or no, and upon the fact thus shown it appears to be felony, the court will not record the confession, but admit him afterwards to plead not guilty.(g) And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading; and though a man by mispleading may in some cases lose his property, yet the law will not suffer him by such niceties to lose his life. However, upon this doubt, demurrers to indictments are seldom used: since the same advantages may be taken upon a plea of not guilty, or afterwards in arrest of judgment, when the verdict has established the fact.

III. A plea in abatement4 is principally for a misnomer, a wrong name, or false addition to the prisoner. As if James Allen, gentleman, is indicted by the name of John Allen, esquire, he may plead that he has the name of James and not of John; and that he is a gentleman, and not an esquire. And if either fact is found by a jury, then the **335]indictment shall be abated, as writs or declarations may be in civil actions, of which we spoke at large in the preceding book.(h) But in the end there is little advantage accruing to the prisoner by means of these dilatory pleas; because, if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule upon all pleas in abatement that he who takes advantage of a flaw must at the same time show how it may be amended. Let us, therefore, next consider a more substantial kind of plea, viz.:

IV. Special pleas in bar; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. These are of four kinds: a former acquittal, a former conviction, a former attainder, or a pardon. There are many other pleas which may be pleaded in bar of an appeal;(i) but these are applicable to both appeals and indictments.

I. First, the plea of autrefoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence,(j) he may plead such acquittal in bar of any subsequent accusation for the same crime.5 Therefore an acquittal on an appeal is a good bar to an indictment on the same offence. And so also was an acquittal on an indictment a good bar to an appeal, by the common law;(k) and therefore, in favour of appeals, a general practice was introduced not to try any person on an indictment of homicide till after the year and day, within which appeals may be brought, were past; by which time it often happened that the witnesses died, or the whole was forgotten. To remedy which inconvenience, the statute 3 Hen. VII. c. 1 enacts, that *[*336indictments shall be proceeded on immediately at the king’s suit, for the death of a man, without waiting for bringing an appeal; and that the plea of autrefoits acquit on an indictment shall be no bar to the prosecuting of any appeal.

2. Secondly, the plea of autrefoits convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be, (being suspended by the benefit of clergy or other causes,) is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime.(l) Hereupon it has been held that a conviction of manslaughter, on an appeal or an indictment, is a bar even in another appeal, and much more in an indictment of murder; for the fact prosecuted is the same in both, though the offences differ in colouring and in degree. It is to be observed that the pleas of autrefoits acquit and autrefoits convict, or a former acquittal and former conviction, must be upon a prosecution for the same identical act and crime. But the case is otherwise, in

3. Thirdly, the plea of autrefoits attaint, or a former attainder, which is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony by judgment of death, either upon a verdict or confession, by outlawry, or heretofore by abjuration, and whether upon an appeal or an indictment, he may plead such attainder in bar to any subsequent indictment or appeal for the same or for any other felony.(m) And this because, generally, such proceeding on a second prosecution cannot be to any purpose; for the prisoner is dead in law by the first attainder, his blood is already corrupted, and he hath forfeited all that he had; so that it is absurd and superfluous to endeavour to attaint him a second time. But to this general rule, however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex. As, 1. Where the former attainder is reversed for error, for then it *[*337is the same as if it had never been. And the same reason holds where the attainder is reversed by parliament, or the judgment vacated by the king’s pardon, with regard to felonies committed afterwards. 2. Where the attainder was upon indictment, such attainder is no bar to an appeal, for the prior sentence is pardonable by the king; and if that might be pleaded in bar of the appeal, the king might in the end defeat the suit of the subject by suffering the prior sentence to stop the prosecution of a second, and then, when the time of appealing is elapsed, granting the delinquent a pardon. 3. An attainder in felony is no bar to an indictment of treason; because not only the judgment and manner of death are different, but the forfeiture is more extensive and the land goes to different persons. 4. Where a person attainted of one felony is afterwards indicted as principal in another, to which there are also accessories, prosecuted at the same time; in this case it is held that the plea of autrefoits attaint is no bar, but he shall be compelled to take his trial for the sake of public justice; because the accessories to such second felony cannot be convicted till after the conviction of the principal.(n) And from these instances we may collect that a plea of autrefoits attaint is never good but when a second trial would be quite superfluous.(o)6

4. Lastly, a pardon may be pleaded in bar; as at once destroying the end and purpose of the indictment by remitting that punishment which the prosecution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in arrest of judgment, before sentence is passed, which gives it by much the preference to pleading it after sentence or attainder. This is, that by stopping the judgment it stops the attainder and prevents the corruption of the blood, which when once corrupted by attainder cannot afterwards be restored otherwise than by act of parliament. But, as the title of pardons is applicable to other stages of prosecution, and they have their respective force and efficacy as well after as before conviction, outlawry, or **338]attainder, I shall therefore reserve the more minute consideration of them till I have gone through every other title except only that of execution.

Before I conclude this head of special pleas in bar, it will be necessary once more to observe that though in civil actions, when a man has his election what plea in bar to make, he is concluded by that plea, and cannot resort to another if that be determined against him; (as if, on an action of debt, the defendant pleads a general release, and no such release can be proved, he cannot afterwards plead the general issue nil debet, as he might at first: for he has made his election what plea to abide by, and it was his own folly to choose a rotten defence;) though, I say, this strictness is observed in civil actions, quia interest reipublicæ ut sit finis litium; yet in criminal prosecutions in favorem vitæ, as well upon appeal as indictment, when a prisoner’s plea in bar is found against him upon issue tried by a jury, or adjudged against him in point of law by the court, still he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty.(p) For the law allows many pleas by which a prisoner may escape death; but only one plea in consequence whereof it can be inflicted, viz., on the general issue, after an impartial examination and decision of the fact by the unanimous verdict of a jury.7 It remains, therefore, that I consider,—

V. The general issue, or plea of not guilty,(q) upon which plea alone the prisoner can receive his final judgment of death. In case of an indictment of felony or treason, there can be no special justification put in by way of plea. As, on an indictment for murder, a man cannot plead that it was in his own defence against a robber on the highway, or a burglar; but he must plead the general issue, not guilty, and give this special matter in evidence. For (besides that these pleas do in effect amount to the general issue, since, if true, the prisoner is most clearly not guilty) as the facts in treason are **339]laid to be done proditorie et contra ligeantiæ suæ debitum, and, in felony, that the killing was done felonice; these charges of a traitorous or felonious intent are the points and very gist of the indictment, and must be answered, directly, by the general negative, not guilty; and the jury upon the evidence will take notice of any defensive matter and give their verdict accordingly, as effectually as if it were, or could be, specially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner.(r)8

When the prisoner hath thus pleaded not guilty, non culpabilis, or nient culpable, which was formerly used to be abbreviated upon the minutes thus, “non (or nient) cul.,” the clerk of the assize, or clerk of the arraigns, on behalf of the crown, replies that the prisoner is guilty, and that he is ready to prove him so. This is done by two monosyllables, in the same spirit of abbreviation, “cul. prit.” which signifies, first, that the prisoner is guilty, (cul. culpable, or culpabilis,) and then, that the king is ready to prove him so, prît, præsto sum, or paratus verificare. This is therefore a replication on behalf of the king viva voce at the bar; which was formerly the course in all pleadings, as well in civil as in criminal causes. And that was done in the concisest manner; for when the pleader intended to demur he expressed his demurrer in a single word, “judgment;” signifying that he demanded judgment whether the writ, declaration, plea, &c., either in form or matter, were sufficiently good in law: and if he meant to rest on the truth of the facts pleaded, he expressed that also in a single syllable, “prît;” signifying that he was ready to prove his assertions: as may be observed from the year-books and other antient repositories of law.(s) By this replication the king and the prisoner are therefore at issue; for we may remember, in our strictures upon pleadings in the preceding book,(t) it was observed that when the parties come to a fact which is affirmed on one side and denied on the other, then they are said to be at issue in point *[*340of fact: which is evidently the case here in the plea of non cul. by the prisoner and the replication of cul. by the clerk. And we may also remember that the usual conclusion of all affirmative pleadings, as this of cul. or guilty is, was by an averment in these words, “and this he is ready to verify, et hoc paratus est verificare;” which same thing is here expressed by the single word “prît.”

How our courts came to express a matter of this importance in so odd and obscure a manner, “rem tantam tam negligenter,” can hardly be pronounced with certainty. It may perhaps, however, be accounted for by supposing that these were at first short notes to help the memory of the clerk and remind him what he was to reply; or else it was the short method of taking down in court, upon the minutes, the replication and averment, “cul. prît;” which afterwards the ignorance of succeeding clerks adopted for the very words to be by them spoken.(u)

But, however it may have arisen, the joining of issue (which, though now usually entered on the record,(w) is no otherwise joined(x) in any part of the proceedings) seems to be clearly the meaning of this obscure expression;(y) which has puzzled our most ingenious etymologists, and is commonly understood as if the clerk of the arraigns, immediately on plea pleaded, had fixed an opprobrious name on the prisoner by asking him, “culprit, how wilt thou be tried?” for immediately upon issue joined it is inquired of the prisoner by what trial he will make his innocence appear.9 This form has at present reference to appeals and approvements only wherein the appellee has his choice either to try the **341]accusation by battel or by jury. But upon indictments, since the abolition of ordeal, there can be no other trial but by jury, per pais, or by the country: and therefore, if the prisoner refuses to put himself upon the inquest in the usual form, that is, to answer that he will be tried by God and the country,(z) if a commoner; and, if a peer, by God and his peers;(a) the indictment, if in treason, is taken pro confesso; and the prisoner, in cases of felony, is adjudged to stand mute, and if he perseveres in his obstinacy shall now(b) be convicted of the felony.10

When the prisoner has thus put himself upon his trial, the clerk answers, in the humane language of the law, which always hopes that the party’s innocence, rather than his guilt, may appear, “God send thee a good deliverance.” And then they proceed as soon as conveniently may be to the trial; the manner of which will be considered at large in the next chapter.

CHAPTER XXVII.

OF TRIAL AND CONVICTION.

**342]The several methods of trial and conviction of offenders established by the laws of England were formerly more numerous than at present, through the superstition of our Saxon ancestors; who, like other northern nations, were extremely addicted to divination; a character which Tacitus observes of the antient Germans.(a) They therefore invented a considerable number of methods of purgation or trial to preserve innocence from the danger of false witnesses, and in consequence of a notion that God would always interpose miraculously to vindicate the guiltless.

I. The most antient(b) species of trial was that by ordeal, which was peculiarly distinguished by the appellation of judicium Dei; and sometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two sorts,(c) either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common people.(d) Both these might be performed by deputy; but the principal was to answer for the success of the trial; the deputy only venturing some corporal pain, for hire, or perhaps for friendship.(e) Fire-ordeal was *[*343performed either by taking up in the hand, unhurt, a piece of red-hot iron of one, two, or three pounds’ weight; or else by walking barefoot, and blindfold, over nine red-hot ploughshares laid lengthwise at unequal distances; and if the party escaped being hurt he was adjudged innocent; but if it happened otherwise, as without collusion it usually did, he was then condemned as guilty. However, by this latter method, queen Emma, the mother of Edward the Confessor, is mentioned to have cleared her character when suspected of familiarity with Alwyn, bishop of Winchester.(f)

Water-ordeal was performed either by plunging the bare arm up to the elbow in boiling water, and escaping unhurt thereby, or by casting the person suspected into a river or pond of cold water; and if he floated therein without any action of swimming, it was deemed an evidence of his guilt, but if he sunk he was acquitted. It is easy to trace out the traditional relics of this water-ordeal in the ignorant barbarity still practised in many countries to discover witches by casting them into a pool of water and drowning them to prove their innocence. And in the Eastern empire the fire-ordeal was used to the same purpose by the emperor Theodore Lascaris; who, attributing his sickness to magie, caused all those whom he suspected to handle the hot iron: thus joining (as has been well remarked)(g) to the most dubious crime in the world the most dubious proof of innocence.

And, indeed, this purgation by ordeal seems to have been very antient and very universal in the times of superstitious barbarity. It was known to the antient Greeks: for, in the *[*344Antigone of Sophocles,(h) a person, suspected by Creon of a misdemeanour, declares himself ready “to handle hot iron and to walk over fire,” in order to manifest his innocence, which, the scholiast tells us, was then a very usual purgation. And Grotius(i) gives us many instances of water-ordeal in Bithynia, Sardinia, and other places. There is also a very peculiar species of water-ordeal said to prevail among the Indians on the coast of Malabar, where a person accused of any enormous crime is obliged to swim over a large river abounding with crocodiles, and if he escapes unhurt he is reputed innocent. As, in Siam, besides the usual methods of fire and water ordeal, both parties are sometimes exposed to the fury of a tiger let loose for that purpose, and if the beast spare either, that person is accounted innocent; if neither, both are held to be guilty; but if he spares both, the trial is incomplete, and they proceed to a more certain criterion.(k)

One cannot but be astonished at the folly and impiety of pronouncing a man guilty unless he was cleared by a miracle, and of expecting that all the powers of nature should be suspended by an immediate interposition of Providence to save the innocent whenever it was presumptuously required. And yet in England so late as king John’s time we find grants to the bishops and clergy to use the judicium ferri, aquæ, et ignis.(l) And, both in England and Sweden, the clergy presided at this trial, and it was only performed in the churches or in other consecrated ground; for which Stiernhook(m) gives the reason: “non defuit illis operæ et laboris pretium; semper-enim ab ejusmodi judicio aliquid lucri sacerdotibus obveniebat.” But, to give it its due praise, we find the canon law very early declaring against trial by ordeal, or vulgaris purgatio, as being the fabric of the devil, “cum sit contra præceptum Domini, non tentabis Dominum Deum tuum.”(n) Upon this authority, though the canons *[*345themselves were of no validity in England, it was thought proper (as had been done in Denmark above a century before)(o) to disuse and abolish this trial entirely in our courts of justice by an act of parliament, in 3 Hen. III., according to Sir Edward Coke,(p) or rather by an order of the king in council.(q)

II. Another species of purgation somewhat similar to the former, but probably sprung from a presumptuous abuse of revelation in the ages of dark superstition, was the corsned, or morsel of execration: being a piece of cheese or bread of about an ounce in weight, which was consecrated with a form of exorcism; desiring of the Almighty that it might cause convulsions and paleness, and find no passage, if the man was really guilty; but might turn to health and nourishment if he was innocent;(r) as the water of jealousy among the Jews(s) was, by God’s special appointment, to cause the belly to swell and the thigh to rot, if the woman was guilty of adultery. This corsned was then given to the suspected person, who at the same time also received the holy sacrament;(t) if, indeed, the corsned was not, as some have suspected, the sacramental bread itself, till the subsequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians assure us that Godwin, earl of Kent, in the reign of king Edward the Confessor, abjuring the death of the king’s brother, at last appealed to his corsned, “per buccellam deglutiendam abjuravit,”(u) which stuck in his throat and killed him. This custom has long since been gradually abolished, though the remembrance of it still subsists in certain phrases of abjuration retained among the common people.(w)

**346]However, we cannot but remark, that though in European countries this custom most probably arose from an abuse of revealed religion, yet credulity and superstition will, in all ages and in all climates, produce the same or similar effects. And therefore we shall not be surprised to find that in the kingdom of Pegu there still subsists a trial by the corsned very similar to that of our ancestors, only substituting raw rice instead of bread.(x) And in the kingdom of Monomotapa they have a method of deciding lawsuits equally whimsical and uncertain. The witness for the plaintiff chews the bark of a tree endued with an emetic quality, which, being sufficiently masticated, is then infused in water which is given the defendant to drink. If his stomach rejects it he is condemned; if it stays with him he is absolved, unless the plaintiff will drink some of the same water; and if it stays with him also the suit is left undetermined.(y)

These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which still remains in force, though very rarely in use, owes its introduction among us to the princes of the Norman line. And that is,

III. The trial by battel,1 duel, or single combat; which was another species of presumptuous appeals to Providence, under an expectation that Heaven would unquestionably give the victory to the innocent or injured party. The nature of this trial in cases of civil injury, upon issue joined in a writ of right, was fully discussed in the preceding book;(z) to which I have only to add that the trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal solemnity as that on a writ of right; but with this difference, that there each party might hire a champion, but here they must fight in their proper persons. And therefore, if the **347]appellant or approver be a woman, a priest, an infant, or of the age of sixty, or lame, or blind, he or she may counterplead and refuse the wager of battel, and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London, by special charter, because fighting seems foreign to their education and employment. So likewise if the crime be notorious: as if the thief be taken with the mainour, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battel from the appellee;(a) for it is unreasonable that an innocent man should stake his life against one who is already half convicted.

The form and manner of waging battel upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn.(b) The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the same by his body; the appellant takes up the glove and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand and in his left the right hand of his antagonist, swears to this effect:—“Hoc audi, homo, quem per manum teneo, &c.,” “Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way guilty of the said felony. So help me God and the saints; and this I will defend against thee by my body, as this court shall award.” To which the appellant replies, holding the Bible and his antagonist’s hand in the same manner as the other:—“Hear this, O man, whom I hold by the hand, who callest thyself Thomas by the name of baptism, that thou art perjured; and therefore perjured because that thou feloniously didst murder my *[*348father, William by name. So help me God and the saints; and this I will prove against thee by my body, as this court shall award.”(c) The battel is then to be fought with the same weapons, viz., batons, the same solemnity, and the same oath against amulets and sorcery, that are used in the civil combat; and if the appellee be so far vanquished that he cannot or will not fight any longer, he shall be adjudged to be hanged immediately; and then, as well as if he be killed in battle, Providence is deemed to have determined in favour of the truth, and his blood shall be attainted. But if he kills the appellant, or can maintain the fight from sunrising till the stars appear in the evening, he shall be acquitted. So also, if the appellant becomes recreant, and pronounces the horrible word of craven, he shall lose his liberam legem and become infamous; and the appellee shall recover his damages, and also be forever quit, not only of the appeal, but of all indictments likewise for the same offence.2

IV. The fourth method of trial used in criminal cases is that by the peers of Great Britain, in the court of parliament, or the court of the lord high steward, when a peer is capitally indicted: for in case of an appeal a peer shall be tried by jury.(d)3 Of this enough has been said in a former chapter;(e) to which I shall now only add that, in the method and regulation of its proceedings, it differs little from the trial per patriam, or by jury; except that no special verdict can be given in the trial of a peer,(f) because the lords of parliament, or the lord high steward, (if the trial be *[*349had in his court,) are judges sufficiently competent of the law that may arise from the fact; and except also that the peers need not all agree in their verdict, but the greater number, consisting of twelve at the least, will conclude and bind the minority.(g)

V. The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman which, as the grand bulwark of his liberties, is secured to him by the great charter:(h) “nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terræ.”

The antiquity and excellence of this trial for the settling of civil property has before been explained at large.(i) And it will hold much stronger in criminal cases; since in times of difficulty and danger more is to be apprehended from the violence and partiality of judges appointed by the crown in suits between the king and the subject than in disputes between one individual and another to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince; and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, despatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have with excellent forecast contrived that no man should be called to answer to the king for any capital crime unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of an indictment, information, or appeal, **350]should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And, however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern.

What was said of juries in general, and the trial thereby in civil cases, will greatly shorten our present remarks with regard to the trial of criminal suits; indictments, informations, and appeals; which trial I shall consider in the same method that I did the former: by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it.

When, therefore, a prisoner on his arraignment hath pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines, de vicineto; that is, freeholders, without just exception, and of the visne or neighbourhood; which is interpreted to be of the county where the fact is committed.(j) If the proceedings are before the court of king’s bench, there is time allowed, between the assignment and the trial, for a jury to be **351]impanelled by a writ of venire facias to the sheriff, as in civil causes; and the trial in case of a misdemeanour is had at nisi prius, unless it be of such consequence as to merit a trial at bar; which is always invariably had when the prisoner is tried for any capital offence. But before commissioners of oyer and terminer and gaol-delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of forty-eight jurors, to try all felons that may be called upon their trial at that session; and therefore it is there usual to try all felons immediately or soon after their arraignment. But it is not customary, nor agreeable to the general course of proceedings, (unless by consent of parties, or where the defendant is actually in gaol,) to try persons indicted of smaller misdemeanours at the same court in which they have pleaded not guilty or traversed the indictment. But they usually give security to the court to appear at the next assizes or session, and then and there to try the traverse, giving notice to the prosecutor of the same.4

In cases of high treason, whereby corruption of blood may ensue, (except treason in counterfeiting the king’s coin or seals,) or misprision of such treason, it is enacted, by statute 7 W. III. c. 3, first, that no person shall be tried for any such treason, except an attempt to assassinate the king, unless the indictment be found within three years after the offence committed; next, that the prisoner shall have a copy of the indictment, (which includes the caption,)(k) but not the names of the witnesses, five days at least before the trial; that is, upon the true construction of the act, before his arraignment,(l) for then is the time to take any exceptions thereto by way of plea or demurrer; thirdly, that he shall also have a copy of the panel of jurors two days before his trial; and, lastly, that he shall have the same compulsive process to bring in his witnesses for him as was usual to compel their appearance against him. And, by statute 7 Anne, c. 21, (which did not take place till after the decease of the late pretender,) all persons indicted for high treason or misprision *[*352thereof shall have not only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impanelled, with their professions and places of abode, delivered to him ten days before the trial, and in the presence of two witnesses, the better to prepare him to make his challenges and defence. But this last act, so far as it affected indictments for the inferior species of high treason, respecting the coin and the royal seals, is repealed by the statute 6 Geo. III. c. 53, else it had been impossible to have tried those offences in the same circuit in which they are indicted: for ten clear days between the finding and the trial of the indictment will exceed the time usually allotted for any session of oyer and terminer.(m)5 And no person indicted for felony is, or (as the law stands) ever can be, entitled to such copies before the time of his trial.(n)

When the trial is called on, the jurors are to be sworn, as they appear, to the number of twelve, unless they are challenged by the party.6

Challenges may here be made, either on the part of the king, or on that of the prisoner, and either to the whole array, or to the separate polls, for the very same reasons that they may be made in civil causes.(o) For it is here at least as necessary, as there, that the sheriff or returning officer be totally indifferent; that where an alien is indicted the jury should be de medietate, or half foreigners, if so many are found in the place,7 (which does not indeed hold in treasons,(p) aliens being very improper judges of the breach of allegiance;8 nor yet in the case of Egyptians9 under the statute 22 Hen. VIII. c. 10;) that on every panel there should be a competent number of hundredors;10 and that the particular jurors should be omni exceptione majores,—not liable to objection either propter honoris respectum, propter defectum, propter affectum, or propter delictum. *[*353Challenges upon any of the foregoing accounts are styled challenges for cause, which may be without stint in both criminal and civil trials. But in criminal cases, or at least in capital ones, there is, in favorem vitæ, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous.11 This is grounded on two reasons. 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside.

This privilege of peremptory challenges, though granted to the prisoner, is denied to the king by the statute 33 Edw. I. st. 4, which enacts that the king shall challenge no jurors without assigning a cause certain, to be tried and approved by the court. However, it is held that the king need not assign his cause of challenge till all the panel is gone through, and unless there cannot be a full jury without the person so challenged; and then, and not sooner, the king’s counsel must show the cause, otherwise the juror shall be sworn.(q)12

The peremptory challenges of the prisoner must, however, have some reasonable boundary; otherwise he might never *[*354be tried. This reasonable boundary is settled by the common law to be the number of thirty-five; that is, one under the number of three full juries. For the law judges that five-and-thirty are fully sufficient to allow the most timorous man to challenge through mere caprice; and that he who peremptorily challenges a greater number, or three full juries, has no intention to be tried at all. And therefore it dealt with one who peremptorily challenges above thirty-five, and will not retract his challenge, as with one who stands mute or refuses his trial, by sentencing him to the peine forte et dure in felony, and by attainting him in treason.(r) And so the law stands at this day with regard to treason of any kind.

But by statute 22 Hen. VIII. c. 14, (which, with regard to felonies, stands unrepealed by statute 1 & 2 Ph. and M. c. 10,) by this statute, I say, no person arraigned for felony can be admitted to make any more than twenty peremptory challenges. But how if the prisoner will peremptorily challenge twenty-one? what shall be done? The old opinion was, that judgment of peine forte et dure should be given, as where he challenged thirty-six at the common law;(s) but the better opinion seems to be(t) that such challenge shall only be disregarded and overruled. Because, first, the common law doth not inflict the judgment of penance for challenging twenty-one, neither doth the statute inflict it; and so heavy a judgment (or that of conviction, which succeeds it) shall not be imposed by implication. Secondly, the words of the statute are, “that he be not admitted to challenge more than twenty;” the evident construction of which is, that any further challenge shall be disallowed or prevented; and therefore, being null from the beginning, and never in fact a challenge, it can subject the prisoner to no punishment; but the juror shall be regularly sworn.13

If, by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales **355]may be awarded as in civil causes,(u) till the number of twelve is sworn, “well and truly to try, and true deliverance make, between our sovereign lord the king and the prisoner whom they have in charge; and a true verdict to give according to their evidence.”

When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshalled, examined, and enforced, by the counsel for the crown or prosecution. But it is a settled rule at common law that no counsel shall be allowed a prisoner upon his trial, upon the general issue in any capital crime, unless some point of law shall arise proper to be debated.(w) A rule which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular)(x) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man which yet is allowed him in prosecutions for every petty trespass? Nor indeed is it, strictly speaking, a part of our antient law; for the Mirror,(y) having observed the necessity of counsel in civil suits, “who know how to forward and defend the cause, by the rules of law and customs of the realm,” immediately afterwards subjoins, “and more necessary are they for defence upon indictments and appeals of felony than upon other venial causes.”(z)14 And the judges themselves are so sensible of this defect that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to *[*356ask questions for him, with respect to matters of fact; for as to matters of law arising on the trial, they are entitled to the assistance of counsel. But, lest this indulgence should be intercepted by superior influence in the case of state-criminals, the legislature has directed, by statute 7 W. III. c. 3, that persons indicted for such high treason as works a corruption of the blood, or misprision thereof, (except treason in counterfeiting the king’s coin or seals,) may make their full defence by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge: and the same indulgence, by statute 20 Geo. II. c. 30, is extended to parliamentary impeachments for high treason which were excepted in the former act.15

The doctrine of evidence upon pleas of the crown is in most respects the same as that upon civil actions. There are, however, a few leading points wherein, by several statutes and resolutions, a difference is made between civil and criminal evidence.

First, in all cases of high treason, petit treason, and misprision of treason, by statutes 1 Edw. VI. c. 12, and 5 & 6 Edw. VI. c. 11, two lawful witnesses are required to convict a prisoner; unless he shall willingly and without violence confess the same. By statute 1 & 2 Ph. and M. c. 10, a further exception is made to treasons in counterfeiting the king’s seals or signatures, and treasons concerning coin current within this realm: and more particularly, by c. 11, the offences of importing counterfeit foreign money current in this kingdom, and impairing, counterfeiting, or forging any current coin. The statutes 8 & 9 W. III. c. 25, and 15 & **357]16 Geo. II. c. 28, in their subsequent extensions of this species of treason, do also provide that the offenders may be indicted, arraigned, tried, convicted, and attainted by the like evidence and in such manner and form as may be had and used against offenders for counterfeiting the king’s money. But, by statute 7 W. III. c. 3, in prosecutions for those treasons to which that act extends, the same rule (of requiring two witnesses) is again enforced; with this addition, that the confession of the prisoner, which shall countervail the necessity of such proof, must be in open court. In the construction of which act, it hath been holden(a) that a confession of the prisoner taken out of court, before a magistrate or person having competent authority to take it, and proved by two witnesses, is sufficient to convict him of treason. But hasty, unguarded confessions, made to persons having no such authority, ought not to be admitted as evidence under this statute. And indeed, even in cases of felony at the common law, they are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence.16 By the same statute, 7 W. III., it is declared that both witnesses must be to the same overt act of treason, or one to one overt act and the other to another overt act, of the same species of treason,(b) and not of distinct heads or kinds; and no evidence shall be admitted to prove any overt act not expressly laid in the indictment.17 And therefore, in Sir John Fenwick’s case, in king William’s time, where there was but one witness, an act of parliament(c) was made on purpose to attaint him of treason, and he was executed.(d) But in almost every other accusation one positive witness is sufficient. Baron Montesquieu lays it down for a rule(e) that those laws which condemn a man to death in any case, on the deposition of a single witness, are fatal to liberty; and he adds this reason, that the witness who affirms, and the accused who denies, make an equal balance:(f) there is a necessity therefore to call *[*358in a third man to incline the scale. But this seems to be carrying matters too far; for there are some crimes in which the very privacy of their nature excludes the possibility of having more than one witness: must these, therefore, escape unpunished? Neither indeed is the bare denial of the person accused equivalent to the positive oath of a disinterested witness. In cases of indictments for perjury this doctrine is better founded; and there our law adopts it: for one witness is not allowed to convict a man for perjury; because then there is only one oath against another.(g) In cases of treason also there is the accused’s oath of allegiance to counterpoise the information of a single witness; and that may perhaps be one reason why the law requires a double testimony to convict him; though the principal reason undoubtedly is to secure the subject from being sacrificed to fictitious conspiracies, which have been the engines of profligate and crafty politicians in all ages.

Secondly, though from the reversal of colonel Sidney’s attainder by act of parliament, in 1689,(h) it may be collected(i) that the mere similitude of handwriting in two papers shown to a jury, without other concurrent testimony, is no evidence that both were written by the same person; yet undoubtedly the testimony of witnesses, well acquainted with the party’s hand, that they believe the paper in question to have been written by him, is evidence to be left to a jury.(j)18

Thirdly, by the statute 21 Jac. I. c. 27, a mother of a bastard child, concealing its death, must prove by one witness that the child was born dead; otherwise such concealment shall be evidence of her having murdered it.(k)19

Fourthly, all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer. *[*359And Sir Matthew Hale in particular(l) lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead; on account of two instances he mentions where persons were executed for the murder of others who were then alive but missing.

Lastly, it was an antient and commonly-received practice(m) (derived from the civil law, and which also to this day obtains in the kingdom of France)(n) that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses. And therefore it deserves to be remembered to the honour of Mary I., (whose early sentiments, till her marriage with Philip of Spain, seem to have been humane and generous,)(o) that when she appointed Sir Richard Morgan chief justice of the common pleas she enjoined him, “that notwithstanding the old error, which did not admit any witness to speak, or any other matter to be heard, in favour of the adversary, her majesty being party; her highness’s pleasure was that whatsoever could be brought in favour of the subject should be admitted to be heard, and, moreover, that the justices should not persuade themselves to sit in judgment otherwise for her highness than for her subject.”(p) Afterwards, in one particular instance, (when embezzling the queen’s military stores was made felony by statute 31 Eliz. c. 4,) it was provided that any person impeached for such felony “should be received and admitted to make any lawful proof that he could, by lawful witness or otherwise, for his discharge and defence;” and in general the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive that a practice was **360]gradually introduced of examining witnesses for the prisoner, but not upon oath;(q) the consequence of which still was, that the jury gave less credit to the prisoner’s evidence than to that produced by the crown. Sir Edward Coke(r) protests very strongly against this tyrannical practice; declaring that he never read in any act of parliament, book-case, or record, that in criminal cases the party accused should not have witnesses sworn for him, and therefore there was not so much as scintilla juris against it.(s) And the house of commons were so sensible of this absurdity that, in the bill for abolishing hostilities between England and Scotland,(t) when felonies committed by Englishmen in Scotland were ordered to be tried in one of the three northern counties, they insisted on a clause, and carried it(u) against the efforts of both the crown and the house of lords, against the practice of the courts in England, and the express law of Scotland,(w) “that in all such trials, for the better discovery of the truth, and the better information of the consciences of the jury and justices, there shall be allowed to the party arraigned the benefit of such credible witnesses to be examined upon oath as can be produced for his clearing and justification.” At length, by the statute 7 W. III. c. 3, the same measure of justice was established throughout all the realm in cases of treason within the act: and it was afterwards declared, by statute 1 Anne, s. 2, c. 9, that in all cases of treason and felony all witnesses for the prisoner should be examined upon oath, in like manner as the witnesses against him.

When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged (unless in cases of evident necessity)(x) till they have given in their verdict;20 but are to consider of it, and deliver it in, with the same forms as upon civil causes; only they cannot, in a criminal case which touches life or member, give a privy verdict.(y) But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court.(z) And such public or open verdict may be either general, guilty, or not guilty; **361]or special, setting forth all the circumstances of the case and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances and finding a general verdict, if they think proper so to hazard a breach of their oaths: and if their verdict be notoriously wrong, they may be punished and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner.(a) But the practice heretofore in use of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the judge, was arbitrary, unconstitutional, and illegal, and is treated as such by Sir Thomas Smith two hundred years ago; who accounted “such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England.”(b) For, as Sir Matthew Hale well observes,(c) it would be a most unhappy case for the judge himself if the prisoner’s fate depended upon his directions: unhappy also for the prisoner; for, if the judge’s opinion must rule the verdict, the trial by jury would be useless. Yet in many instances(d) where, contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside and a new trial granted by the court of king’s bench; for in such case, as hath been said, it cannot be set right by attaint. But there hath yet been no instance of granting a new trial where the prisoner was acquitted upon the first.(c)21

If the jury therefore find the prisoner not guilty, he is then forever qui and discharged of the accusation,(d) except he be appealed of felony within the time limited by law. And upon such his acquittal, or discharge for want of *[*362prosecution, he shall be immediately set at large without payment of any fee to the gaoler.(e) But if the jury find him guilty,(f) he is then said to be convicted of the crime whereof he stands indicted; which conviction may accrue two ways,—either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country.

When the offender is thus convicted, there are two collateral circumstances that immediately arise. 1. On a conviction (or even upon an acquittal where there was a reasonable ground to prosecute, and in fact a bona fide prosecution) for any grand or petit larceny or other felony, the reasonable expenses of prosecution, and also, if the prosecutor be poor, a compensation for his trouble and loss of time, are, by statutes 25 Geo. II. c. 36 and 18 Geo. III. c. 19, to be allowed him out of the county stock, if he petitions the judge for that purpose; and by statute 27 Geo. II. c. 3, explained by the same statute, (18 Geo. III. c. 19,) all persons appearing upon recognizance or subpœna to give evidence, whether any indictment be preferred or no, and as well without conviction as with it, are entitled to be paid their charges, with a further allowance (if poor) for their trouble and loss of time.22 2. On a conviction of larceny in particular, the prosecutor shall have restitution of his goods, by virtue of the statute 21 Hen. VIII. c. 11.23 For by the common law there was no restitution of goods upon an indictment, because it is at the suit of the king only; and therefore the party was enforced to bring an appeal of robbery, in order to have his goods again.(g) But, it being considered that the party prosecuting the offender by indictment deserves to the full as much encouragement as he who prosecutes by appeal, this statute was made, which enacts that if any person be convicted of larceny by the evidence of the party robbed, he shall have full restitution of his money, goods, and chattels, or the value of them out of the offender’s goods, if he has any, by a writ to be granted by the justices. And, the construction of this act having been in great measure conformable to the law of appeals, it has therefore in practice superseded the use of appeals in larceny. For instance: as formerly upon appeals,(h) so now upon indictments of larceny, this writ of restitution **363]shall reach the goods so stolen, notwithstanding the property(i) of them is endeavoured to be altered by sale in marketovert.(k) And though this may seem somewhat hard upon the buyer, yet the rule of law is that “spoliatus debet, ante omnia, restitui,” especially when he has used all the diligence in his power to convict the felon. And, since the case is reduced to this hard necessity, that either the owner or the buyer must suffer, the law prefers the right of the owner, who has done a meritorious act by pursuing a felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction.24 And it is now usual for the court, upon the conviction of a felon, to order, without any writ, immediate restitution of such goods as are brought into court to be made to the several prosecutors. Or else, secondly, without such writ of restitution, the party may peaceably retake his goods, wherever he happens to find them,(l) unless a new property be fairly acquired therein. Or, lastly, if the felon be convicted and pardoned, or be allowed his clergy, the party robbed may bring his action of trover against him for his goods and recover a satisfaction in damages. But such action lies not before prosecution, for so felonies would be made up and healed;(m) and also recaption is unlawful, if it be done with intention to smother or compound the larceny, it then becoming the heinous offence of theft-bote, as was mentioned in a former chapter.(n)

It is not uncommon when a person is convicted of a misdemeanour which principally and more immediately affects some individual, as a battery, imprisonment, or the like, for the court to permit the defendant to speak with the prosecutor **364]before any judgment is pronounced, and, if the prosecutor declares himself satisfied, to inflict but a trivial punishment. This is done to reimburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil action. But it surely is a dangerous practice; and, though it may be intrusted to the prudence and discretion of the judges in the superior courts of record, it ought never to be allowed in local or inferior jurisdictions, such as the quarter sessions, where prosecutions for assaults are by this means too frequently commenced rather for private lucre than for the great ends of public justice. Above all, it should never be suffered where the testimony of the prosecutor himself is necessary to convict the defendant, for by this means the rules of evidence are entirely subverted: the prosecutor becomes in effect a plaintiff, and yet is suffered to bear witness for himself. Nay, even a voluntary forgiveness by the party injured ought not in true policy to intercept the stroke of justice. “This,” says an elegant writer,(o) who pleads with equal strength for the certainty as for the lenity of punishment, “may be an act of good nature and humanity, but it is contrary to the good of the public. For, although a private citizen may dispense with satisfaction for his private injury, he cannot remove the necessity of public example. The right of punishing belongs not to any one individual in particular, but to the society in general, or the sovereign who represents that society: and a man may renounce his own portion of this right, but he cannot give up that of others.”

CHAPTER XXVIII.

OF THE BENEFIT OF CLERGY.

*[*365After trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by some intervening circumstance, of which the principal is the benefit of clergy; a title of no small curiosity as well as use, and concerning which I shall therefore inquire: 1. Into its original, and the various mutations which this privilege of clergy has sustained. 2. To what persons it is to be allowed at this day. 3. In what cases. 4. The consequences of allowing it.

I. Clergy, the privilegium clericale, or, in common speech, the benefit of clergy, had its original from the pious regard paid by Christian princes to the church in its infant state, and the ill use which the popish ecclesiastics soon made of that pious regard. The exemptions which they granted to the church were principally of two kinds: 1. Exemption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries. 2. Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases, which was the true original and meaning of the privilegium clericale.

But the clergy, increasing in wealth, power, honour, number, and interest, began soon to set up for themselves; and that which they obtained by the favour of the civil government they now claimed as their inherent right, and as a *[*366right of the highest nature, indefeasible, and jure divino.(a) By their canons therefore and constitutions they endeavoured at, and where they met with easy princes obtained, a vast extension of these exemptions, as well in regard to the crimes themselves, of which the list became quite universal,(b) as in regard to the persons exempted, among whom were at length comprehended not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen.

In England, however, although the usurpations of the pope were very many and grievous till Henry the Eighth entirely exterminated his supremacy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often endeavoured by the clergy:(c) and, therefore, though the ancient privilegium clericale was in some capital cases, yet it was not universally, allowed. And in those particular cases the use was for the bishop or ordinary to demand his clerks to be remitted out of the king’s courts as soon as they were indicted: concerning the allowance of which demand there was for many years a great uncertainty;(d) till at length it was finally settled in the reign of Henry the Sixth that the prisoner should first be arraigned, and might either then claim his benefit of clergy, by way of declinatory plea, or after conviction, by way of arresting judgment. This latter way is most usually practised, as it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also it is more advantageous to the prisoner himself, who may possibly be acquitted and so need not the benefit of his clergy at all.

Originally the law was held that no man should be admitted to the privilege of clergy but such as had the **367]habitum et tonsuram clericalem.(e) But in process of time a much wider and more comprehensive criterion was established; every one that could read (a mark of great learning in those days of ignorance and her sister superstition) being accounted a clerk or clericus, and allowed the benefit of clerkship, though neither initiated in holy orders nor trimmed with the clerical tonsure. But when learning, by means of the invention of printing and other concurrent causes, began to be more generally disseminated than formerly, and reading was no longer a competent proof of clerkship or being in holy orders, it was found that as many laymen as divines were admitted to the privilegium clericale; and therefore, by statute 4 Hen. VII. c. 13, a distinction was once more drawn between mere lay scholars, and clerks that were really in orders. And though it was thought reasonable still to mitigate the severity of the law with regard to the former, yet they were not put upon the same footing with actual clergy, being subjected to a slight degree of punishment, and not allowed to claim the clerical privilege more than once. Accordingly, the statute directs that no person once admitted to the benefit of clergy shall be admitted thereto a second time unless he produces his orders: and, in order to distinguish their persons, all laymen who are allowed this privilege shall be burned with a hot iron in the brawn of the left thumb. This distinction between learned laymen and real clerks in orders was abolished for a time by the statutes 28 Hen. VIII. c. 1 and 32 Hen. VIII. c. 3; but it is held(e) to have been virtually restored by statute 1 Edw. VI. c. 12, which statute also enacts that lords of parliament and peers of the realm, having place and voice in parliament, may have the benefit of their peerage, equivalent to that of clergy, for the first offence, (although they cannot read, and without being burned in the hand,) for all offences then clergyable to commoners, and also for the crimes of house-breaking, highway-robbery, horse-stealing, and robbing of churches.1

**368]After this burning, the laity, and, before it, the real clergy, were discharged from the sentence of the law in the king’s court, and delivered over to the ordinary, to be dealt with according to the ecclesiastical canons. Whereupon the ordinary, not satisfied with the proofs adduced in the profane secular court, set himself formally to work to make a purgation of the offender by a new canonical trial; although he had been previously convicted by his country, or perhaps by his own confession.(f) This trial was held before the bishop in person or his deputy; and by a jury of twelve clerks: and there, first, the party himself was required to make oath of his own innocence; next, there was to be the oath of twelve compurgators, who swore they believed he spoke the truth; then witnesses were to be examined upon oath, but on behalf of the prisoner only; and lastly, the jury were to bring in their verdict upon oath, which usually acquitted the prisoner; otherwise, if a clerk, he was degraded or put to penance.(g) A learned judge, in the beginning of the last century,(h) remarks with much indignation the vast complication of perjury and subornation of perjury in this solemn farce of a mock trial; the witnesses, the compurgators, and the jury being all of them partakers in the guilt: the delinquent party also, though convicted before on the clearest evidence, and conscious of his own offence, yet was permitted and almost compelled to swear himself not guilty: nor was the good bishop himself, under whose countenance this scene of wickedness was daily transacted, by any means exempt from a share of it. And yet by this purgation the party was restored to his credit, his liberty, his lands, and his capacity for purchasing afresh, and was entirely made a new and an innocent man.

This scandalous prostitution of oaths and the forms of justice, in the almost constant acquittal of felonious clerks by purgation, was the occasion that, upon very heinous and *[*369notorious circumstances of guilt, the temporal courts would not trust the ordinary with the trial of the offender, but delivered over to him the convicted clerk, absque purgatione facienda: in which situation the clerk convict could not make purgation, but was to continue in prison during life, and was incapable of acquiring any personal property or receiving the profits of his lands, unless the king should please to pardon him. Both these courses were in some degree exceptionable; the latter being perhaps too rigid, as the former was productive of the most abandoned perjury. As, therefore, these mock trials took their rise from factious and popish tenets, tending to exempt one part of the nation from the general municipal law, it became high time, when the reformation was thoroughly established, to abolish so vain and impious a ceremony.

Accordingly, the statute of 18 Eliz. c. 7 enacts that, for the avoiding of such perjuries and abuses, after the offender has been allowed his clergy, he shall not be delivered to the ordinary as formerly; but, upon such allowance and burning in the hand, he shall forthwith be enlarged and delivered out of prison; with proviso that the judge may, if he thinks fit, continue the offender in gaol for any time not exceeding a year. And thus the law continued for above a century unaltered, except only that the statute of 21 Jac. I. c. 6 allowed that women convicted of simple larcenies under the value of ten shillings should (not properly have the benefit of clergy, for they were not called upon to read; but) be burned in the hand and whipped,2 stocked, or imprisoned for any time not exceeding a year. And a similar indulgence, by the statutes 3 & 4 W. and M. c. 9, and 4 & 5 W. and M. c. 24, was extended to women guilty of any clergyable felony whatsoever; who were allowed once to claim the benefit of the statute, in like manner as men might claim the benefit of clergy, and to be discharged upon being burned in the hand, and imprisoned for any time not exceeding a year. The punishment of burning in the hand, being found ineffectual, was *[*370also changed, by statute 10 & 11 W. III. c. 23, into burning in the most visible part of the left cheek nearest the nose; but, such an indelible stigma being found by experience to render offenders desperate, this provision was repealed about seven years afterwards, by statute 5 Anne, c. 6, and till that period all women, all peers of parliament, and peeresses, and all male commoners who could read were discharged in all clergyable felonies; the males absolutely, if clerks in orders; and other commoners, both male and female, upon branding; and peers and peeresses without branding for the first offence; yet all liable, (excepting peers and peeresses,) if the judge saw occasion, to imprisonment not exceeding a year. And those men who could not read, if under the degree of peerage, were hanged.

Afterwards, indeed, it was considered that education and learning were no extenuations of guilt, but quite the reverse; and that, if the punishment of death for simple felony was too severe for those who had been liberally instructed, it was, a fortiori, too severe for the ignorant also. And thereupon, by the same statute, 5 Anne, c. 6, it was enacted that the benefit of clergy should be granted to all those who were entitled to ask it, without requiring them to read by way of conditional merit.3 And experience having shown that so very universal a lenity was frequently inconvenient, and an encouragement to commit the lower degrees of felony, and that, though capital punishments were too rigorous for these inferior offences, yet no punishment at all (or next to none) was as much too gentle, it was further enacted, by the same statute, that when any person is convicted of any theft or larceny, and burned in the hand for the same, according to the antient law, he shall also, at the discretion of the judge, be committed to the house of correction or public workhouse, to be there kept to hard labour for any time not less than six months and not exceeding two years; with a power of inflicting a double confinement in case of the party’s escape from the first. And it was also enacted, by the statutes 4 Geo. I. c. 11, and 6 Geo. I. c. 23, that when any person shall be convicted of any larceny, **371]either grand or petit, or any felonious stealing or taking of money, or goods and chattels, either from the person or the house of any other, or in any other manner, and who by the law shall be entitled to the benefit of clergy, and liable only to the penalties of burning in the hand or whipping, the court, in their discretion, instead of such burning in the hand or whipping, may direct such offenders to be transported to America (or, by the statute 19 Geo. III. c. 74, to any other parts beyond the seas) for seven years; and if they return, or are seen at large in this kingdom, within that time, it shall be felony without benefit of clergy. And by the subsequent statutes, 16 Geo. II. c. 15, and 8 Geo. III. c. 15, many wise provisions are made for the more speedy and effectual execution of the laws relating to transportation, and the conviction of such as transgress them. But now, by the statute 19 Geo. III. c. 74, all offenders liable to transportation may in lieu thereof, at the discretion of the judges, be employed, if males, [except in the case of petty larceny,] in hard labour for the benefit of some public navigation; or, whether males or females, may in all cases be confined to hard labour in certain penitentiary houses, to be erected by virtue of the said act, for the several terms therein specified, but in no case exceeding seven years; with a power of subsequent mitigation, and even of reward, in case of their good behaviour. But if they escape and are retaken, for the first time an addition of three years is made to the term of their confinement; and a second escape is felony without benefit of clergy.

In forming the plan of these penitentiary houses, the principal objects have been, by sobriety, cleanliness, and medical assistance, by a regular series of labour, by solitary confinement during the intervals of work, and by due religious instruction, to preserve and amend the health of the unhappy offenders, to inure them to habits of industry, to guard them from pernicious company, to accustom them to serious reflection, and to teach them both the principles and practice of every Christian and moral duty. And if the whole of