BLACKSTONE'S COMMENTARIES:

WITH

NOTES OF REFERENCE,

TO

THE CONSTITUTION AND LAWS,

OP THE

FEDERAL GOVERNMENT OF THE UNITED STATES;

AND OF THE

COMMONWEALTH OF VIRGINIA.

IN FIVE VOLUMES.

WITH AN APPENDIX TO EACH VOLUME,

CONTAINING

SHOUT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED

VIEW OF THE LAWS OF VIRGINIA,

AS A MEMBER OF THE FEDERAL UNION.

BY ST. GEORGE TUCKER,

PROFESSOR OF LAW, IK THE UNIVERSITY OF WILLIAM AND MARY, AND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.

PHILADELPHIA:

PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,

NO. 17, SOUTH SECOND-STREET.

ROBERT CARR, PRINTER.

1803.

District of Pennsylvania: to wit.

BE it remembered, That on the ninth day of May, in the twenty-seventh Year of the Independence of the United States of America, William Young Birch, and Abraham Small, of the said District, have deposited in this Office the Title of a Book, the right whereof they claim as Proprietors, in the words following, to wit: "Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to each Volume, containing, Short Tracts upon such Subjects as appeared necessary to form a connected View of the Laws of Virginia, as a Member of the Federal Union, By St. George Tucker, Professor of Law, in the University of William and Mary, and one of the Judges of the General Court in Virginia." In Conformity to the Act of the Congress of the United States, intituled, "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies during the times therein mentioned," and also, to an Act entituled, "An Act supplementary to an Act, entituled, an Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. And extending the Benefits hereof to the Arts of designing, engraving, and etching historical, and other Prints." (L. S.) D. CALDWELL,

Clerk of the District of Pennsylvania.

COMMENTARIES ON THE LAWS OF ENGLAND.

BOOK THE FOURTH. OF PUBLIC WRONGS.

CHAPTER THE FIRST. 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 misdemesnors. For we may remember that, in the beginning of the preceding volumea, 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 misdemesnors; 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 accessories; fourthly, the several species of crimes, with the punishment annexed to each, by the laws of England;

a Book III, c. 1.

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 misdemesnor.

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 centers 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 ail cases, the proper prosecutor for every public offence b.

The knowlege of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it, it's adequate and necessary penalty, is of the utmost importance to every individual in the state. For, (as a very great master of the crown lawc 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 lime 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 moments 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 enforcing it. It should be founded upon principles that are permanent, uniform, 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 eternal boun-

b See Vol. I, p. 268.

c Sir Michael Foster, Pref. to Rep.

daries) may be modified, narrowed, 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 of 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 trial 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 two little rare and attention in framing and passing new ones.... The enacting of penalties, to which a whole nation shall 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 al-

d Baron Montesquieu, marquis Beccaria, &c.

ready 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 thereone. 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 fishpond, whereby any fish shall escape; or to cut down a cherry-tree in an orchardf. Were even a committee appointed but once in an 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 Egyptiansg.

It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public: but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of anyone, 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.... 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 misdemesnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemesnors; which, properly speaking, are mere synony-

e See Vol. II. p. 345.

f Stat. 9 Geo. I. c. 22, 31 Geo. II, c. 42.

g Stat. 5 Eliz. c. 20.

mous 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 comprized under the gentler names of "misdemesnors" only1.

The distinction of public wrongs from private, of crimes and misdemesnors 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 misdemesnors, are a breach and violation of the public rights and duties, due to the whole community, considered as a community, in it's social aggregate capacity. As if I detain a field from another man, to which the law has given him aright, 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.

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. 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 it's 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 ex-

1. In the English law misdemeanour is generally used in contradistinction to felony; and misdemeanours comprehend all indictable offences, which do not amount to felony; as perjury, battery, libels, conspiracies, &c. ... Christian.

ample 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. But there are crimes of an inferior nature, in which the public punishment is not so severe, hut 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. 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 damage 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, it 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 tranquility

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 misdemesnors in general being thus ascertained and distinguished, I proceed in the next place to consider the general nature of punishments: which are evils or inconveniencies consequent upon crimes and misdemesnors; 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 misdemesnors 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; since 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

h See Grotius, de j. & p. l. 2. c. 20, Puffendorf, L. of Nat. and N. b. 8. c. 3. i Gen. iv. 14.

municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guiltk.

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 a right of making laws, and of enforcing obedience to them when made, by exercising, upon their non-observance, seventies 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 it's members, as each individual member had naturally over himself or others. Which has 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 representativel, "whoso sheddeth man's blood, by man shall his blood be shed." 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

k See Vol. I. page 254.

l Gen. ix. 6.

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 it's origin not to the law of nature, but merely to civil society

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 it's 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. It is not it's 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 farther 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 II, 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 it's being useless, nay even pernicious, given orders for abolishing it entirely throughout her

m Book II. ch. 1.

n 1 Hal. P. C. 13.

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 waggons 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 provisions 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 conscience 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 indisputable demonstration.

I would not be understood to deny the right of the legislature in any country to enforce it's 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 commit-o Grand instructions for framing a new code of laws for the Russian empire, Sec. 210.

ted; 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 poena (as Tullyp 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: or, 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 farther 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 villainies.

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

p Pro Cluentio. 46.

best calculated to answer the end of precaution against future offences.

Hence it will be evident, that what some have so highly extolled for it's 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 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 1, that he who struck out the eye of a one-eyed man, should loose 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 decrepid assassin is a poor satisfaction for the murder of

1 Pott. Ant. b. 1, c. 2G.

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, 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 alt, 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 writersr, 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 attempted 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 quan-

r Beccar. c. 15.

s Stat. 38 Edw. III, c. 9.

tity 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) of 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 *.

Farther: 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 v: 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 u, "ea sunt animadvertenda peccata maxime, quae difficillime praecaventur" 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; 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; 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 an 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 misdemesnor, 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 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

t Thus Demosthenes (in his oration against Midias) finely works up the aggravations of the insults he had received. "I was abused, says he, by my enemy, in cold blood, out of malice, not by heat of wine, in the morning, publicly, before strangers as well as citizens; and that in the temple, whither the duty of my office called me."

v Beccar. c. 6. u pro Sexto Roscio. 40.

w 4 Inst. 285. x Beccar. c. 7.

are more effectually prevented by the certainty, than by the severity of punishment. For the excessive severity of laws (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 it's preamble, "that the state of every king consists more assuredly in the love of the subject 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 farther observe, that sanguinary laws are a bad symptom of the distemper of any state, or at least of it's 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.

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 that 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 proposedz, that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending

y Sp. L. b. 6. c. 13.

z Beccar. c. 6.

from the greatest to the least2: 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 inferior rank. Where men see no distinction made in the

2. This was first attempted in Virginia by the committee of revisers, (Mr. Jefferson, Mr. Pendleton, and Mr. Wythe,) appointed by the general assembly of Virginia in October 1776, to prepare and report to the general assembly a code of laws for this commonwealth: treason, petit treason, and murder, were the only offences which were deemed worthy of death: manslaughter was to be punished by seven years hard labour, and by confiscation of half the offender's lands and goods, to the next of kin to the person slain: and the like forfeiture, by way of retribution, in all cases of murder. Rape, and sodomy, were to be punished by castration; and malicious maiming, by the lex talionis, or where that was impracticable by forfeiture of lands and goods. Arson, burglary, robbery, horse-stealing, and other lesser crimes, were punishable by hard labour, and reparation to the party injured. This bill did not pass.... See the Report, chap. 64. According to Mr. Swift, the legislature of Connecticut, before Montesquieu and Beccaria had immortalised their names in pleading the cause of humanity, had begun to practice upon the sublime principles which those philosophers have recommended by all the charms of eloquence and power of reason. Their scale is death; confinement to hard labour, and coarse fare; and corporal and pecuniary pains and penalties. The crimes for which death is the punishment, are treason, murder, rape, the crime against nature, mayhem, and arson, where some life is endangered. Imprisonment and hard labour in Newgate, are inflicted for robbery, burglary, forgery, counterfeiting, horse-stealing, arson, attempting to commit a rape, perjury, and aiding to escape from Newgate prison. For all other crimes, corporal and pecuniary punishments are inflicted. Swift's System of the Laws of Connect. 2. 295, 296.

But the example of the state of Pennsylvania seems most worthy of this eulogium, and of the imitation of every other government. They have substituted for all crimes, excepting treason and murder in the first degree, the punishment of confinement to hard labour and coarse fare instead of death. But it is the mode of inflicting the punishment, in the government and discipline of the prison, that the cause of humanity, and the great ends of justice, are most effectually served. In a building accommodated to that purpose, the convicts perform the labour assigned to them with the regularity and order of mechanics in their workshop.. To stimulate industry, they are entitled to receive, on their release, the whole product of their labour, after deducting their own maintenance and expences from the amount. In case of refractory behaviour, they may be confined in solitary cells, until they

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

a Sp. L. b. 6 c. 16.

submit to the regulations of the gaol. This mode of confinement to solitary cells, forms also a part of their punishment, and the period is proportioned by the court to the nature and atrocity of their crimes. They are secured and kept to hard labour without irons or shackles, and are not subject to any other hardship: it is said, this mild punishment is found effectual, and that crimes are more effectually restrained by it, than heretofore by death, and other severe punishments.... See an account of the prisons of Philadelphia, by an EUROPEAN. Philadelphia printed, by Moreau de Saint Mery, in 1796. As also, an inquiry how far the punishment of death is necessary, in Pennsylvania, by the late William Bradford, Esq. printed in Carey's Museum for 1798. In the year 1796, Mr. George Keith Taylor, a delegate for the county of Prince George, obtained leave to bring into the house of delegates, in Virginia, a bill to amend the penal laws of this commonwealth, formed upon the principles of the Pennsylvania law, and was happy enough to obtain a majority of the legislature in it's favour. The sum of thirty thousand dollars was thereby granted for the erection of a spacious jail, upon the general plan of that in Philadelphia; a further grant of money has since been made, and the building is so far completed, as to be now fit for the reception of criminals; the law took effect in virtue of the governor's proclamation, that the jail was in a situation to receive criminals on the 26th of March, 1800. And now, no offence whatsoever committed by any FREE PERSON against the commonwealth of Virginia, is punishable with death, except murder in the first degree; by which is meant such as may be perpetrated by poison, or by lying in wait, or any other kind of wilful, deliberate killing; or which may be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary. All other kinds of murder are deemed murder in the second degree, which is punishable by hard labour and solitary confinement for a period not less than five, nor more than eighteen years. High treason against the state, is punishable, in like manner, for a period not less than six, nor more than twelve years; arson, for a period not less than five, nor more than twelve years; rape, for a period not less than ten, nor more than twenty-one years; robbery and burglary for a period not less than three, nor more than ten years; and by reparation in value to the party injured; horse-stealing for a period not less than two, nor more than seven years, and by restoration of the horse, or reparation in value to the party injured; larceny, above the value of four dollars,

subject to fewer robberies, yet they never rob but they also murder. 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.

for a period not less than one, nor more than three years; and under that value, for a period not less than six months, nor more than a year, with reparation in value to the party injured in both cases. Robbery of bonds, bills of exchange, promissory notes, and other securities of the like nature, is punishable in the same manner as robbery of goods. Counterfeiting and forgery, for a period not less than four, nor more than fifteen years, and by fine not exceeding one thousand dollars; malicious maiming and disfiguring, for a period not less than two, nor more than ten years; and by fine, to the use of the party injured, not exceeding one thousand dollars; voluntary manslaughter for a period not less than two, nor more than ten years; and the offender to give security for good behaviour for life, or a less period, according to the enormity of the offence. Involuntary manslaughter happening in consequence of some unlawful act, may be prosecuted as for a misdemeanour. The benefit of clergy is taken away in all cases; all other offences, not enumerated in the act, if the offender would, under the former laws, have been entitled to the benefit of clergy, are punishable in like manner for a period not less than six months, nor more than two years; and if the benefit of clergy were taken away by former laws, then for a period not less than one, nor more than ten years. The jury are, in all cases, to fix the period of imprisonment, and the court that of solitary confinement in the cells of the jail; the latter is not to exceed one half, nor be less than one-twelfth part of the period of the former. L. V. Sess. Acts of 1796, c. 2, and 1799, c. 58. It is most devoutly to be wished, that the success of this experiment in this state, may be equal to what it has been hitherto in Pennsylvania; and that future legislatures may be so well convinced of it's practicability, as well as of it's beneficial effects, as to extend it to SLAVES as well as FREE PERSONS, to whom it's operation is at present confined.

Several ingenious essays on the subject of capital punishments, have, from time to time, appeared in America; of which Mr. Carey has preserved some excellent specimens in his museum. See vol. II, p. 142; vol. III. 395, 509 to 516; vol. IV. 78, 444, 547; vol. V. 63, 121; vol. VII. 6, 69, 135, 193; vol. VIII. 153, 202; vol. X. 215, 267.... Museum for 1798, p. 1.

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 an hundred and sixty have been declared by act of parliamentb 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. The 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.

b See Ruffhead's index to the statutes (tit. felony) and the acts which have since been made.

CHAPTER THE SECOND.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

HAVING, in the preceding chapter, considered in general the nature of crimes, and punishments, we are next led, 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 it's choice either to do or to avoid the fact in question, being the only thing 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 conscientiae, 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 tem-

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 vitious will without a vitious act is no civil crime, so, on the other hand, an unwarrantable act without a vitious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vitious will; and, secondly, an unlawful act consequent upon such vitious 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 and 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 loaths 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 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;

a 1 Hawk. P. C. 2.

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 an half was aetas infantiae proxima; from ten and an half to fourteen was aetas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, infantiae proxima, they were not punishable for any crime b. During the other half stage of childhood, approaching to puberty, from ten and an half to fourteen, they were indeed punishable, if found to be doll 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 misdemesnors: 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 the age of fourteen, is equally liable to suffer, as a person of the full age of twenty-onel.

With regard to capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several

b Inst. 3, 20, 10.

d 1 Hal. P. C. 20, 21, 22.

c Ff. 29, 5, 14, 50, 17, 111, 47, 2, 23.

1. It would seem that twenty-one years were accounted the age of discretion in criminal as well as in civil cases, in the time of king Alfred; who hanged Athulf, one of his judges, because he caused Copping to be hanged before the age of one and twenty years. Hornes Mirror, Ch. 5. Sec. 1. p. 240.

In one case, the unlawful taking away a woman under the age of sixteen, out of the possession of her parents or other person having the care of her, the law seems to regard fourteen years as the age of discretion in the offender. See V. L. 1794, c. 104. Sec. 20.

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 dd: and from thence till the offender was fourteen, it was aetas 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 aetatem." Under seven years of age indeed an infant cannot be guilty of felonye; for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony f. Also, under fourteen, though an infant shall be prima fade 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 burnt 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 to discern between good and evil g. 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 h. Thus also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bed-fel-

dd LL. Athelstan Wilk. 65.

c Mir. c. 4. Sec. 16 1 Hal. P. C. 27.

f Dalt. Just. c. 147.

h Emlyn on 1 Hal. P. C. 25,

g 1 Hal. P. C. 26, 27.

low; 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 i. 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.

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 chargable for their own acts, if committed when under these incapacities: no, not even for treason itself k. Also, if n 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 2; 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 something in stay of judgment or execution l. Indeed, in the bloody reign of

i Foster, 72.

l 1 Hal P. C. 34.

k 3 Inst. 6.


2. King Alfred hanged Cole, one of his judges because he judged Ive to death, when he was a madman. Mirror c. 5. p. 239. But Henry the VIII procured a statute to be made in his reign, whereby any person committing treason, and afterwards becoming a lunatic might be thereof indicted, and arraigned without his personal presence; and if found guilty should suffer death as if he were of perfect memory, See statutes at large. 33. Hen. VIII, c. 20.

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 statute1 and 2 Ph. and M. c. 10. For, as is observed by sir Edward Coke n, "the execution of an offender is for example, ut poena 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. 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 °. 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 1, a method is chalked out for imprisoning, chaining, and sending them to their proper homes3.

III. Thirdly; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour. A drunkard, says sir Edward Coke r, who is voluntarius daemon, hath no privilege thereby; but what

m 33 Hen. VIII, c. 20. o 1 Hal. P. C. 31. q 17 Geo. II, c. 5

n 5 Inst. 6.

p Bro. Mr tit. corone. 101.

r 1 Inst. 247.

3. On this subject. See V. L. 1794, c. 120.

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 ebriety which prompted him to commit it t. The Roman law indeed made great allowances for this vice: "per vinuni delapsis capitalis poena 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 4.

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 oc-

s Sp L. b. 14. c. 10. u Ff. 49. 16. 6.

t Puff. L. of N. b. 8. c. 3. w Plowd. 10.

4. Since our law punishes drunkenness, it certainly makes it no excuse for the perpetration of any crime; and the smallness of the fine, viz. eighty three cents, would induce us to suppose that the law does not regard it as an aggravation of any other crime. See V. L. 1794, c. 138.

On the subject of this, and the preceding head, see 1 Hale, H. P. C. p. 30, &c. where the subject is treated more fully, and in some respects more satisfactorily.

casion to speak hereafter: at present only observing, that if any accidental mischief 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 5.

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 house-breaker 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.

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

x 1 Hal. P C. 39. z Plowd. 343.

y Cro. Car. 538. a Ff. 22. 6. 9.

5. This is to be understood of such acts as are mala in se and, not merely mala prohibita; as shooting at. game by persons not qualified by statute. Foster, 259.... Christian.

Any person guilty of involuntary manslaughter, happening in consequence of an unlawful act, may be prosecuted and punished as for a misdemeanor, only. L. V. 1796, c. 2, §. 12.

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.

1. 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 legislature 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 conscientiae, 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 burnt Latimer and Ridley, in the bigotted 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 it's 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 or 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 express 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.... Which doctrine is at least a thousand years old in this kingdom,

b 1 Hawk. P. C. 3.

c Hal P C. 43.

being to be found among the laws of king Ina, the West Saxond. 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 ulterum 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*: not only because these are of a deeper die; 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 6. In treason also, (the highest crime which a member of society can, as such, be guilty of) no plea of coverture shall excuse the the wife; no presumption of the husband's coercion shall extenuate her guilt f: as well because of the odiousness and dangerous consequence 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 misdemesnors also, we may remark another exception; that a wife may be indicted and set in the pillory with her husband, for keeping a brothel; for this is an offence touching the domestic economy or govern-

d Cap. 57.

f 1 Hal P.C. 47.

e Stiernh. de jure Sueon. l. 2. c. 4.

* The law seems to protect the wife in all felonies committed by her in company with her husband, except murder and man-slaughter. 1 Hal. P. C. 47.

Christian.

6. In the year 1786, a slave belonging to one Jones was convicted before Prince George county court, of having murdered a man by hanging him, in the company and by the command of his master, and one Abbot who was afterwards convicted: the court recommended the slave to mercy, as it appeared he acted under the coercion of his master, then present, and he was pardoned by the executive.......

Jones made his escape, and is said to be now alive in Georgia.

ment 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. 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.

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 misdemesnors; 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 the time of peace l. This however seems only, 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 case he is permitted to kill the assailant;. for there the law of nature, and self-defence it's 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 with-

g 1 Hawk. P. C. 2. 3. i l. 2 f. 16. l 1 Hal. P. C. 50.

h See Vol. I. page 131 k Ff. 4, 2, 5 & 6. m 1 Hal. P. C. 51.

out 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 chusing one, he chuses the least 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 chusing 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 cloathing 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 concession 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, it's 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 sevenfold, and shall give all the substance of his house:" which was the ordinary punishment for theft, in that kingdom. And this is foun-

n 1 Hal. P. C. 53.

p L. of Nat. and N. 1, 2. c. 6.

r 1 Hal. P. C. 54.

t Prov. vi. 30.

o de jure b. & p. l. 2. c. 2.

q Britton. c. 10. Mirr. c. 4. Sec. 16,

s de off. l. 3. c. 5.

ded 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 hardship7. An advantage which is wanting in many

7. During the dispute between England and Spain about the Falkland Islands, the following melancholy incident is said to have happened in London: A workman was returning one evening to his family with his weekly wages: he was apprehended by a press gang, and cast into the hold of a tender; his landlord, and some other of his creditors, hearing of what they called his elopement, seised on his furniture, and his wife and child were turned out of doors. Within a few days after, the mother was delivered of a second child, in a garret. As soon as weakness permitted her to rise, she left her two naked children, and wandered in the streets, as a common beggar. Instead of obtaining assistance, she was reproached as an abandoned vagabond. In despair she went into a shop, and attempted to carry off a small piece of linen. She was seised, tried, and condemned to be hanged. In her defence, she said she had lived reputably and happily, till the press-gang robbed her of her husband, and in him, of all means of support for herself and children: that in attempting to cloath her new born infant, she, perhaps, did wrong, as she did not, at that time, know what she did. The parish officers and other witnesses bore testimony to the truth of her averment, she was, nevertheless, condemned, and executed at Tyburn. This fact is said to have been men-

states, particularly those which are democratical 8: and these have, in it's stead introduced and adopted, in the body of the law itself, a multitude of circumstances tending to alleviate it's 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 person; which extends 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 w, to which I must refer the reader 9.

u 1 Hal. P. C. 44.

w Book I, c. 7, p. 244.

tioned in the British house of commons, by Sir William Meridith, May, 13, 1777. For the sake of humanity, it were to be wished that the authenticity of it, were more questionable. It shews how far theoretical excellence, and practical abominations may exist together at the same time, and in the same country.

8. This is not true, as it respects the American States.... The power of pardon is vested in the executive department of the government in every state.

9. As in the course of the present volume the student will frequently meet with offences created by statute, or, the penalties of

which have been altered by statute, it will be proper in this place to apprise him, that the legislature of VIRGINIA, considering that the good people of this commonwealth may be ensnared by an ignorance

of acts of the parliament of England which have never been published

in any collection of the laws, and having thought it advisable from time to time specially to enact such of the statutes of that kingdom, as have appeared to them to be worthy of adoption, did in the year, 1792, enact and declare, that thereafter, no statute or act of parliament shall have any force, or authority within this commonwealth. L. V. Edi. 1794, c. 147.

And, (as we have elsewhere endeavoured to shew) inasmuch as neither the statute law of England, nor that of any other nation, can have any authority or obligation in the government of the United States, so neither can any offence created by statute in England, be deemed an offence, for that reason, against the federal government.

All statutory offences and penalties whatsoever, treated of in the commentaries, as offences, against the laws of England, are, therefore, to be regarded only as offences in that kingdom, and, not as having any existence either in the commonwealth of Virginia, or under the federal government, unless made such by the legislature of the commonwealth, or of the United States.

This general rule, if attended to, will save an infinite deal of trouble, in perusing those parts of this volume, which treat of offences created, enlarged, or diminished, by statute.

CHAPTER THE THIRD.

OF PRINCIPALS AND ACCESSORIES.

IT having been shewn 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 1. Which

a 1 Hal. P C. 615.

1. Antiently these principals in the second degree were held to be accessories, only, and not principals. M. 40 Edw. III. pl. 22. p. 42, and 40. Ass. pl. 25, whereby it appears four were appealed as principals, in murder, and the others of presence, force and aid. But of late times, (says Plowden) the law has been held contrary in this point, for they are now taken to be principals by all the sages of the law. And it seems that the law was so changed in the time of Henry the fourth. Plowd. 99, 100, and by Bromley C. I. those who give the stroke are principals in deed; but those who are present, aiding and abetting, only, are principals in law. Plowden, 97. And by the same judge, if the principal in the second degree be tried and convicted before him in the first degree, and then the principal in the first degree be tried and acquitted, he in the second degree shall be also acquitted, notwithstanding his former conviction, ibid. Nevertheless where the

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. 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 it's 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 of the murderer, by means which he had prepared before-hand, 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 exciting 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 person, 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

b Foster, 350. d Foster, 349.

c Kel. 52. e 8 Inst. 138.

principals in the first degree made their escape, those in the second degree, might notwithstanding, be tried and if conducted might have judgment of death against them and be executed. Plowden, 101.

In the reign of Hen. VII, the chief justice Hussey, whose authority is much relied on in respect to there being no accessories in treason; asked this question of all the judges assembled in the exchequer chamber; whether he who is present at the death of a man, and moves another to strike him, be a principal ? And it was held by all the judges present, that he is a principal as much as if he had given the stroke. Hussey, said, although he were not present, it is all one. Quod fuit concessum per aliquos. Year Book, 4 Hen. VII. p. 18, and in the same book, 13 Hen. VII. p. 10, there is a case to that effect.

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 it's performance, but is someway 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 2. 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 very 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, there may be accessories: except only in those offences, which by

f 1 Hal. P. C. 617. 2 Hawk. P. C.315.

g 3 Inst. 138. 1 Hal. P. C. 613. h Foster, 342.

2. It appears highly questionable for reasons that will hereafter appear, whether the doctrine here laid down, though supported by the authority of Sir Mathew Hale, and Sir Edward Coke, is perfectly sound, even upon the principles of the common law. But the applicability of this doctrine to the offence of treason against the United States, is I apprehend, infinitely more questionable; as will be shewn at large in the tract concerning treason. Appendix to this volume, Note B.

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, quae de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemesnors. 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 petty 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 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 natura 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

i 1 Hall. P.C. 615. l 3 Inst. 139. n 1 Hal. P. C. 615. 616. p Foster. 125.

k Ibid. 613.

m 2 Hawk. P. C. 315.

o Dyer, 186.

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. 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. 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 it's 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. 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 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 goal with cloaths or other necessaries, is no offence: for the crime imputable to this species of accessory is the hindrance 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 misdemesnor, and made not the receiver

q 1 Hal. P. C. 617. s 1 Hal. P. C. 618. u 2 Hawk. P. C. 317, 318.

r 2 Hawk. P. C. 316. t 2 Hawk. P. C. 319. v 1 Hal. P. C. 620, 621.

accessory to the theft, because he received the goods only, and not the felon u: but now by the statutes 5 Ann. c. 31, and 4 Geo. I. c. 11, all such receivers are made accessories (where the principal felony admits of accessories w), and may be transported for fourteen years; 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 clergy3. In France such receivers are punished with death: and the Gothic constitutions distinguished also three sorts of thieves, "unum qui consillum daret, alterum qui contrectaret, tertium qui receptaret et occuleret; pari poenae singulos obnoxios x."

The felony must be complete at the time of the assistance given; else it makes not the assistance 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 y. 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 his 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 felony, the receivers become accessories ex post facto z. 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

u 1 Hal. P. C. 620. w Foster, 73,

x Stiernhook, de jure Goth. I. 3, c, 5.

y 2 Hawk. P. C. 320. z 3 Inst. 108 2 Hawk. P. C 320.

3. Neither of these statutes is in force in Virginia. But any person buying or receiving any stolen goods, knowing them to be stolen, or buying or receiving any HOUSES, knowing them to be stolen, may be prosecuted as for a misdemeanour: which, in both cases, shall exempt the offender from being punished as accessory, if the principal felon be afterwards taken and convicted. V, L. 1794, c. 101. and 109.

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; 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 4.

a 1 Hal P. C. 621. c 3 Inst. 183. e Stat. 31 Eliz. c. 12. g 1 Hal. P. C. 615.

b See Stiernhook. ibid. d Pott. Antiq b. 1. c 26. f Stat. 18 Geo. II, c. 27.

4. The act of 1789, c. 22. Edi. 1794, c. 47, allowed the benefit of clergy to accessories after the fact, in all cases whatsoever. But the benefit of clergy is now taken away, on all cases, by the act for amending the penal laws, 1796, c. 2, and in lieu thereof it is declared, that every person convicted of any felony not specifically mentioned in that act, which was theretofore deemed clergyable, shall undergo an imprisonment at hard labour, and solitary confinement, for any time not less than six months, and not more than two years. V. L. sessions acts of 1796, c. 2. Sec. 13.

Note... Accessories before the fact in murder, are not mentioned in the act of 1796, being deprived of the benefit of clergy, by the form-

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 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 shewn more fully in it's proper place 5. 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 acquitted as principal, he can be afterwards indicted as accessory before the fact; since those offences are frequently very near 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 it's 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.

h Beccar. c. 37.

i 1 Hal. P. C. 625, 626. 2 Hawk. P. C. 373. Foster. 361.

er law, their case will come under the act of 1799, c. 58, whereby the punishment is changed to imprisonment in the penitentiary house for any time not less than one, nor more than ten years.

5. And this is still the law, as to accessories before the fact but accessories after the fact, in horse-stealing; and the receivers of stolen goods, knowing them to be stolen, may be prosecuted as for a misdemeanour only, altho', the principal be not yet taken, or convicted, as was before mentioned, ante p. 38, in note... and V. L. 1794. c. 101, 109.

If any principal offender be convicted of any felony, or stands mute or persists in peremptorily challenging above the number of twenty jurors, (both which cases amount to a conviction. V. L. 1794, c. 74. Sec. 18.) the accessory whether before, or after the fact, may be proceeded against, in the same manner as if the principal had been attainted; notwithstanding such principal felon may have been admitted to his clergy, pardoned, or otherwise delivered before attainder; and every such accessory shall suffer the same punishment in case of conviction standing mute, or peremptorily challenging more than twenty jurors, as he would if the principal had been attainted. L. V. 1794, c. 109.

CHAPTER THE FOURTH. 1

OF OFFENCES AGAINST GOD AND RELIGION.

IN the present chapter we are to enter upon the detail of the several species of crimes and misdemesnors, with the punishment annexed to each by the laws of England. It was observed in the beginning of this book % that crimes and misdemesnors are a breach and violation of the public rights and duties, owing to the whole community, considered as a community, in it's social aggregate capacity. And in the very entrance of these commentaries b it was shewn, that human laws can have no concerns 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 farther 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 knowlege and of course beyond

a See page 5. c Beccar. ch. 8.

b See Vol. I, page 123, 124.

1. Before we enter upon the subject of the ensuing chapter, it will I apprehend be proper to say a few words respecting the cognizance of crimes and misdemeanours; for which we must refer the student to the appendix to this volume, note A.

the reach of human tribunals: but if committed publicly, in the face of the world, it's evil example makes it liable to temporal censures2. The vice of lying, which consists (abstractly taken) in a criminal violation of truth, and therefore in any shape 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 recompence is given 3. And yet drunkenness and malevolent lying are in foro conscientiae 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 misdemesnors, 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 offenses, which are either directly or by conse-

2. L. V. 1794, c. 138. Accordant.

3. Formerly there was a law in Virginia which substituted the punishment of ducking upon the offender, if a married woman, in lieu of pecuniary damages against the husband, in actions of slander. L. V. 1662, c. 5. Purvis 107.

quence 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 infringe 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 misdemesnors, 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.

I. Of this species the first is that of apostacy, 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 Constantius 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 it's 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 attri-

d Cod. l. 7. 1 f l. 3, c. 9.

e Ibid 6

butes 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, therefore, all confidence in human veracity, must be weaked by apostacy, and overthrown by total infidelity g. Wherefore all affronts to Christianity, or endeavours to depreciate it's 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 apostacy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro salute animae. But about the close of the last century, the civil liberties to which we were then restored, being used as a cloke 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 and 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 he 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 purchasor of lands, and shall suffer three years imprisonment without bail. To give room, however, for repentance, if, within four months after the first

g Utiles esse opiniores has, quis negat, cum intelligat, quam multa firmentur jurejurando; quantae salutis sunt foederum religiones; quam multos divini supplicit metus a scelere revocarit; quamque sancta sit societas civiam inter ipsos, Diis immortalibus interpositis tum judicius tum testibus? Cic. de LL. ii. 7.

h Mescroyantz, in our antient law books is the name of unbelievers.

conviction, the delinquent will, in open court, publicly renounce his error, he is discharged for that once from all disabilities4.

II. A second offence is that of heresy, which consists not in a total denial of Christianity, but of some of it's essential 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 acknowleged 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

i 1 Hal. P. C. 334.

4. "RELIGION, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and it is the duty of all to practice Christian forbearance, love, and charity, towards each other." Bill of Rights, Art. 16.

"No man shall be compelled to frequent, or support any religious worship, place, or ministry, whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess, and by argument, to maintain their opinions in matters of religion, and the same shall in no wise diminish, enlarge, or affect their civil capacities." L. V. 1785, Edition of 1794, c. 20.

"It is hereby further declared by the general assembly of Virginia, that the law entitled an act for establishing religious freedom, is a true exposition of the principles of the bill of rights and constitution." L. V. 1798, c. 9, Sessions acts.

"No religious test shall ever be required as a qualification to any office or public trust under the United States." C. U. S. Art. 6.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Amendments to C. U. S. Art. 3.

Here we may repeat the words of the celebrated Montesquieu: "In things that prejudice the tranquility, or security of the state, secret actions are subject to human jurisdiction. But in those which offend the Deity, where there is no public action, there can he no criminal matter; the whole passes betwixt man and God, who knows the measure and time of his vengeance." Spirit of Laws, b. 12, c. 4.

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 an heretic given by Lyndewode k, extends to the smallest deviations from the doctrines of holy church "haercticus est qui dubitat de fide catholica, et qui negligit servare ea, quae 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 farther 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 usus. 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 cententia circa eum moderatur l: well knowing at the same time, that they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the antient Donatists and Manichaeans, 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 burnt with fire, who were convicted of heresy by the ecclesiastical judge. The same emperor, in another constitution o, ordain-

k cap. de haereticis. m Cod. l. 1. tit. 5. o Cod. 1, 5, 4.

l Decretal. l. 5. t. 40, c. 27. n c. de haereticis.

ed 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 seise 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 daemon 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 haeretico 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 haeretico comburendo being not a writ of course, but issuing only by the special direction ,of the king in council r.

But 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,

p Baldus in Cod. 1, 5, 4. q F. N. B. 269.

r 1 Hal. P. C. 395.

s So called not from lolium, or tares, (an etymology, which was afterwards devised in order to justify the burning of them; Matt. xiii. 30.) but from one Walter Lolhard, a German reformer, A. D. 1315. Mod. Un. Hist. xxvi. 13. Spelm. Gloss. 371.

obtained an act of parliament t, which sharpened the edge of persecution to it's 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 are told in some points what it is not: the statute of 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 con. tested 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 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 burnt 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;

t 2 Hen. IV, c. 15.

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 synod only v. 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 haeretico comburendo was not demandable of common right, but grantable or otherwise merely at the king's discretion u. 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 liable to be burnt, 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 haeretico comburendo remained still in force; and we have instances of it's 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 the ecclesiastical correction pro

v 5 Rep. 23. 12 Rep 56, 92. u 1 Hal. P. C. 405.

salute animae, 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 crude undigested sentiments in religious matters. Of propagating, I say; for the bare entertaining them, without any 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 in the holy trinity to be God, or maintain that there are more Gods than one, he shall undergo the same penalties and incapacities, which were just now mentioned to be inflicted on apostacy by the same statute. And thus much for the crime of heresy5.

5. See the note, page 44.

If magistrates, confounding things, should enquire into hidden sacrileges, this inquisition would be directed to a kind of action that does not at all require it, the liberty of the subject would be subverted by arming the zeal of timorous, as well as of presumptuous consciences against him.

III. Another species of offences against religion are those which affect the established church. And these are either positive, or negative: positive by reviling it's ordinances; or negative, by non-conformity to it's 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

The mischief arises from a notion some people have of revenging the cause of the Deity. But we must honor the Deity, and leave him to avenge his own cause. In effect, were we to be directed by such a notion, where would be the end of punishments?

An historian of Provence relates a fact which furnishes us with an excellent description of the consequences that may arise in weak capacities from this notion of avenging the Deity's cause. A Jew was accused of having blasphemed against the blessed Virgin, and upon conviction was condemned to be fleaed alive. A strange spectacle was then seen: gentlemen masked, with knives in their hands, ascended the scaffold, and drove away the executioner, in order to be the avengers themselves, of the honor of the blessed Virgin. Montesquieu's Sp. of Laws, B. 12. c. 4.

The execution of the lord Cobham for heresy, in denying the real presence in the sacrament, is thus related. He was brought out of the tower with his arms bound behind him, and laid upon an hurdle, and so drawn to St. Giles's Fields, where a new gallows was erected, upon which he was hanged up by the middle in chains of iron, and so burnt alive; the priests all the while cursing, and requiring the people not to pray for him, but to judge him damned in hell. State Trials, Vol. I. 49, 50.

Whilst human nature shudders at such recitals, the citizens of the United States cannot but exult in the security which they feel against similar persecutions and sufferings.

every petty conventicle enjoy. However it is provided by statutes 1 Edw. VI. c. 1, and 1 Eliz. c. l, 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 of 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 the said book, or shall forcibly prevent the reading of it, or cause any other service to be used in it's stead, he shall forfeit for the first offence an hundred marks; for the second, four hundred; and for the third, shall forfeit all his goods and chattels, and suffer imprisonment for life. These 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 anil 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 it's ordinances, for not submitting it's 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 v. A rigid attachment to trifles, and an intemperate zeal for reforming them, are equally ridiculous and absurd: but the latter is at pre-

v By an ordinance 23 Aug. 1645, which continued till the restoration, to preach, write, or print, any thing in derogation or depraving of the directory, for the then established presbyterian worship, subjected the offender upon indictment to a discretionary fine, not exceeding fifty pounds. (Scobell, 98 )

sent the less excusable, because from political reasons, sufficiently hinted at in a former volume w, it would now be extremely unadviseable to make any alterations in the service of the church; unless by it's own consent, or unless it can be shewn that some manifest impiety or shocking absurdity will follow from continuing the present forms6.

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 shewn 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 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 dis-

w Vol. I. page 98

6. See the notes, page 44, 50.

senters 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 it's 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 colour of the minister's garment, the joining in a known or an 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 statutesx, 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 y. 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,

x 23 Eliz. c. 1. 29 Eliz. c. 6. 35 Eliz. c. 1. 22 Car. II. c. 1.

y The ordinance of 1645 (before cited) inflicted imprisonment for a year on the third offence, and pecuniary penalties on the former two, in case of using the book of common-prayer not only in a place of public worship, but also in any private family.

commonly called the toleration act; which is confirmed by statute 10 Ann. c. 2, and declares that neither the laws above-mentioned, nor the statutes 1 Eliz. c. 2. §. 14. 3 Jac. I. c. 4 and 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 z) 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 and 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 of 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 these 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. and M.) be bound over to the sessions

z See stat. 8 Geo. I. c. 6.

of the peace, and forfeit twenty pounds 7. 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 a, 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 and 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.

As to papists, what has been said of the protestant dissenters would hold equally strong for a general toleration of them; 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 reliques and images, nay even their transubstantiation. But while they acknowlege a foreign power, superior to the sovereignty of the kingdom, they cannot complain if the

a Sir Humphry Edwin, a lord mayor of London, had the imprudence, soon after the toleration act, to go to a presbyterian meeting-house in his formalities; which is alluded to by dean Swift, in his Tale of a Tab, under the allegory of Jack getting on a great horse, and eating custard.

7. If any person shall, on purpose, maliciously or contemptuously disquiet, or disturb any congregation assembled in any church, meeting-house, or other place of religious worship, or any minister of religion being there, he may be put under restraint by any justice being present, and bound to his good behaviour, and imprisoned and amerced at the discretion of a jury. L.V. 1794, c.138. And, by the same act, no licenced minister can be arrested for any civil cause, whilst he is performing divine service.

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; both 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 apostacy, 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 licence, 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 licence, they shall be guilty of felony, and suffer death as felons without 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 parliament, keeping arms in his house, or any horse above the value of five pounds. This is the state, by the laws now in beingb, 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 and 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 embassadors, 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 c) or shall be in England three days without conforming and taking the oaths, is guilty of high treason: and all per-

b Stat. 23 Eliz. c. 1. 27 Eliz. c. 2. 29 Eliz. c. 6. 35 Eliz. c. 2. 1 Jac I, c 4. 3 Jac. I, c. 4 and 5. 7 Jac. I, c. 6. 3 Car. I, c. 3. 25 Car. II, c. 2. 30 Car. II, st. 2. 1 W. and M. c. 9, 15 and 26. 11 and 12 W. III, c 4. 12 Ann. st. 2, c. 14 1 Geo. 1, st. 3, c. 55. 3 Geo I, c 13. 11 Geo II, c. 17. c Raym 377. Latch. 1.

sons 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 observesd, 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 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 should 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

d Sp. L. b. 19, c. 27.

merciless bigot, to drag clown the vengeance of these occasional laws upon inoffensive, though mistaken, subjects; in opposition to the lenient inclinations of tho 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 and 12 W. III, is repealed, so far as it disables them from purchasing or inheriting, or authorises the apprehending or prosecuting the popish clergy, or subjects to perpetual imprisonment either them or any teachers of youth.

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 e 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 same time that he takes the oath of office: or, in default of either of these requisites, such election shall be void. The other, called the test act f, 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 time 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

e Stat, 13 Car. II, st. 2, c 1.

f Stat. 25 Car. II, c. 2, explained by 9 Geo. II, c. 26.

two credible witnesses; upon forfeiture of 500l. and disability to hold the said office. And of much the same nature with these is the statute 7 Jac. I, c. 2, which permits no persons to be naturalized or restored in blood, but such as undergo a like test: which test having been removed in 1733, 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 particularg. 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 animae; while the temporal courts resent the public affront to religion and morality on which all government 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. 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 8: for Christianity is part of the laws of England h 9.

V. Somewhat allied to this, though in an inferior degree, is the offence of profane and common swearing and cursing. By

g 1 Hawk. P. c. 7.

h 1 Vent. 293. 2 Strang. 834.

8. See the notes, page 44 and 50.

9. This, as a civil offence, seems to have been abolished, by the provisions contained in the bill of rights, &c. together with the other offences against religion, already noticed in this chapter. See note, page 44.

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 a 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. 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. 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 shew, 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 informer10.

VI. A sixth species of offences 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, inchantment, or sorcery. To deny the possibility, nay, actual existence of witchcraft and sorcery, is a 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 it's turn borne testimony, either by examples seemingly well attested, or by prohibitory laws; which at least suppose the possibility of a commerce with evil spirits. The civil law punishes with death not only the sorcerers themselves, but also those who consult them i; imitating in the former the express law of God k, "thou shalt

i Cod. l. 9. c. 18.

k Exod. xxii. 18.

10. Any person profanely swearing or cursing, is liable to a fine of eighty-three cents for every offence. L. V. 1794, c. 138.

not suffer a witch to live." And our own laws, both before and since the conquest, have been equally penal; ranking this crime in the same class with heresy, and condemning both to the flamesl. The president Montesquieum 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 inchantment; 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

l 3 Inst. 44.

n Mr. Addison, Spect. No. 117.

m Sp. L. b. 12. c. 5.

now at an end; our legislature having, at length, followed the wise example of 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 person for conjuration, witchcraft, sorcery, or inchantment. But the misdemesnor 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 11.

VII. A seventh species of offenders in this class are all religious impostors: such as falsly 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 12.

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 sacred-


o Voltaire Siecl. Louis xiv. c. 29. Mod. Un. Hist. xxv. 215, Yet Voughlans (de droit criminel, 353, 459) still reckons up sorcery and witchcraft among the crimes punishable in France.

p 1 Hawk P. C. 7.

11. The laws of Virginia do not notice this offence. The statutes of 33 Hen. VIII, and 1 Jas. I, c. 12, relating thereto, are repealed by the act repealing all British statutes. V. L. 1794, c. 147. The act of 9 Geo. II, c. 5, never was in force in Virginia.

12. The laws of Virginia are silent, likewise upon this subject.

The committee of revisers, appointed in 1776, reported a clause in their draught, of a bill for proportioning crimes and punishments,

to the following effect: "All attempts to delude the people, or to abuse their understanding, by pretended prophecies, or by the exercise of

the pretended arts of witchcraft, conjuration, enchantment, or sorcery, shall be punished by ducking and whipping at the discretion of a jury, not exceeding fifteen stripes." Report of the Committee of Revisors, c. 64. The bill did not pass.

ness of the charge which is thus profanely bought and sold, as because it is always attended with perjury in the person presented q. 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 other corrupt consideration or promise, directly or indirectly given, shall present, admit, institute, induct, install, 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. And persons who shall corruptly ordain or licence any minister, or procure him to be ordained or licenced (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 crown13.

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 publickly transacted on that day, in a country professing Christianity, and the corruption of morals which usually follows it's profanation, the keeping one day in 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 so-q 3 Inst. 156. r See Vol. II, p. 279.

13. There being no advowsons in Virginia, nor any church by law established, the offence of simony, as a civil offence, is unknown to our laws, at present. See Note, p. 44.

The statute of Elizabeth, independent of these reasons, stands repealed. V. L. 1794, c. 147.

ciety 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 chearfulness: 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 forbad 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 person shall assemble, out of their own parishes, for any sport whatsoever upon this day; nor, in their parishes, shall use any bull or bear 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 14.

s c 24.

14. If any person on a sabbath day shall himself be found labouring at his own, or any other trade, or calling; or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary houshold offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every offence, deeming every apprentice &c. as constituting a distinct offence. L. V. 1794, c. 138. And, if the keeper of any public house shall suffer any person to tipple or drink in his house, more than is necessary on a sunday, or any other day set apart by authority, for religious worship, he shall forfeit his licence. Ibid. c. 107. §. 10. Buying and selling to or from negroes or mulattoes, bond or free, on a sabbath day, is punishable by fine of ten dollars, 1801. c. 21.

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 licencing of ale-houses, and punish persons found tippling therein; or the masters of such houses permitting them (14).

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; or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment u *. In the year

t Poph 208. u 1 Siderf. 168.

* Many offences of the incontinent kind fall properly under the jurisdiction of the ecclesiastical court, and are appropriated to it. But except those appropriated cases, the court of king's bench is the custos morum of the people, and has the superintendency of offences contra bonos mores. 3 Burr. 1438. In that court a gentleman was fined 2000 marks and imprisonment for exposing himself naked in a public street. 1 Sid 168. And an information has been granted against a number of persons concerned in assigning a young girl as an apprentice to a gentleman, under pretence of learning music, but for the purposes of prostitution. 3 Burr. 1438. There is also an instance of an information for a conspiracy against a peer and several others for enticing away a young lady from her father's house, and procuring her seduction by the peer. The young lady was the sister of his wife. That circumstance was undoubtedly a great aggravation of the offence, yet it's existence in the case was not necessary to give the court cognizance of the prosecution. 3 St. Tr. 519. In a case, where a husband had formerly assigned his wife over to another man, lord Hardwicke directed a prosecution for that transaction, as being notoriously and grossly against public decency and good manners. 3 Burr. 1438. All such acts of indecency and immorality are public misdemeanours, and the offenders may be punished either by an information granted by the court of king's bench, or by an indictment preferred before a grand jury at the assises or quarter sessions... Christian.

(14). Drunkenness is punishable by a fine of five shillings; which if the offender be unable to pay, he shall receive ten lashes on his bare back for every offence. L. V. 1794, c. 138.

1650, when the ruling powers 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 a contrary extreme of licentiousness, it was not thought proper to renew a law of 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 it's first compilers. The temporal courts therefore take no cognizance of the crime of adultery, otherwise than as a private injury x 15.

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

w Scobell. 121.

y See Vol. I. page 458.

x See Vol. III. page 139. z Dalt. just. ch. 11.

15. Both fornication and adultery are punishable by fine, to the use of the poor of the county or corporation. V. L. 1794, c. 138. §. 6. Quere, how far the enticing away or seducing young girls, and other offences of the like nature are punishable in the common law courts in this country, vide. 3 Bursou, 1438. 1 Sid. 168. 3 State Trials 519.

child is considered as a degree of punishment. By the last mentioned statute the justices 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 16.

16. The laws of Virginia 1727, c. 1. 1753, c. 2. §. 13, and 1769, c. 27, formerly inflicted a punishment, upon the mother, only; but in the revision of 1792, all the penalties of those acts, except such as are intended to enforce the maintaining the child by the reputed father, are omitted. See V. L. 1794, c. 102. §. 23.

CHAPTER THE FIFTH.

OF OFFENCES AGAINST THE LAW OF NATIONS.1

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, ab 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 re-

a Ff. 1.1. 9.

c Sp. L. b. 1. c. 3.

b See Vol. I. page 43.

1. Congress have power to define and punish piracies, and felonies committed on the high seas, and offences against the law of nations. C. U. S. Art. 1. §. 8.

suit from those principles 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 it's jurisdiction) is here adopted in it's 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 it's 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.

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 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 nati-

d See Vol. I. page 273.

ons; 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 a 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.

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 the 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 carta f, that foreign

c See Vol. I. page 260. f 9 Hen. III. c. 70. See Vol. I. page 259, &c.

merchants should be entitled to safe-conduct and security throughout the kingdom 2; 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

2. In case a war arise between the United States of America, and any foreign state, the merchants and people of such state in this commonwealth, shall not be attached either in their body or goods, because of such war, but shall be warned by proclamation of the governor, to depart with their families and goods, freely, within forty days: and in the mean time they shall not be impeached, nor let of their passage, or of making profit of their merchandize. L. V. 1785, Edi. 1794, c. 12. And by the same act, they shall be treated here, as our merchants are treated in the country with whom we are at war. This act is, in this respect, a transcript from magna carta, c. 30.

By the laws of the United States, whenever there shall be a declared war between the United States, and any foreign nation, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened, and the president of the United States shall make proclamation thereof, all natives, denizens, or subjects of the hostile nation, being males of the age of fourteen, and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed, as alien enemies. And the president, by his proclamation, may DIRECT THE CONDUCT to BE OBSERVED TOWARDS SUCH ALIENS; the manner and degree of the restraint, and in what cases, and upon what security, their residence shall be permitted; and to provide for the removal of such, as not being permitted to remain, shall refuse to depart; and to ESTABLISH ANY OTHER REGULATIONS, which shall be found necessary in the premises!!! But such aliens, if not chargeable with actual hostility, or other crime against the public safety, shall be allowed for their departure and removal, &c. of their effects, the full time stipulated by any treaty with their nation. L. U. S. 5 Congress, c. 83.

The period allowed for the departure of the citizens or subjects of one nation, from the territories of the other, as stipulated in the treaty with France, is six months; Art. 20. With Holland nine months; Art. 18. With Sweden, nine months; Art. 22. With Prussia, nine months; Art. 23. With Morocco, nine months; Art. 24. No period is mentioned in the treaty with Algiers. In that with Great Britain, it is agreed that the merchants and others of each nation shall have the privilege of remaining and continuing their trade in the dominions of the other, so long as they behave peaceably, and commit no offence against the laws: and in case their conduct should render them suspected, and they be ordered to remove, the term of twelve months shall be allowed them for that purpose, Art.26. So that a subject of Great Britain, whose

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 impowered 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 accessors; 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 farther 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 obeysance, against any stranger in amity, league, or truce, or under safe-conduct; and especially by attaching his person, or spoiling 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 and 20 Hen. VI, and also the reviving act of 29 Hen. VI, were only temporary; so that it should seem that, after the ex-

conduct may render him suspected, in the case of war between the two countries, might, (during the continuance of the before mentioned act,) stand upon a better footing in the United States, than the subject of that, or any other nation whatsoever, in time of peace, however irreproachable his conduct may be!!! Vide, L. U. S. 5 Cong. c. 75.

piration 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 Edward VI and queen Mary, for abolishing new-created treasons; though sir Mathew 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 3.

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 recognizes 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 Ann. c. 12, that all process whereby the person of any embassador, or of his domestic servant, may be arrested, or his goods distreined or seised, shall be utterly null and void; and that all persons prosecuting, soliciting, or executing such process, being convicted by confession or the oath of one witness, before the 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.

g 1 Hal. P. C. 267. h See Vol I, p 253. i See the occasion of making this statute; Vol. I, p. 255.

3. If any person shall violate any safe-conduct, or pass-port duly obtained and issued under the authority of the United Slates, the person so offending, on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court. L. U. S. 1 Cong. 2 Sess. c. 9, §. 28.

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 crime4.

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 Cokek, 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.

k 3 Inst. 113.

4. Process sued out of any court, whatsoever against the person, of an ambassador, or other public minister, or any of his domestics, or domestic servants; or against his or their goods and chattels shall be deemed absolutely null and void. And any person suing forth or prosecuting any such process, and all attornies, sollicitors and officers, prosecuting, or executing any such writ, or process, being thereof convicted, shall be deemed violaters of the law of nations, and disturbers of the public repose, and imprisoned not exceeding three years, and fined at the discretion of the court. But no citizen or inhabitant of the United States, who shall have contracted debts, prior to his entering into the service of an ambassador, which remain unpaid, shall have any benefit of the act. Nor shall any person be liable to the penalties thereof, for suing the domestic servant of an ambassador, unless his name be first registered in the office of the secretary of state, and transmitted to the marshall of the district, in which congress shall reside, who shall affix the same in some public place in his office.

And if any person shall assault, strike, wound, imprison, or in any other manner infract the law of nations by offering violence to the person of an ambassador, or other public minister, the person so offending, on conviction, shall be imprisoned not exceeding three years, and fined, at the discretion of the court. L. U. S. 1 Cong. 2 Sess. c. 9. Sect. 25, 26, 27, 28.

By the antient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien, to be felony only: but now, since the statute of treasons, 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,

The offence of piracy, by common law, consists in committting those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there n 5. 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 subject6. And farther, 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

1 3 Inst. 113.

n 1 Hawk. P. C. 100.

m 1 Hawk. P. C. 98,

5. L. U. S. 1 Cong. 2 Sess. c. 9, §. 8. Accordant,

6. Ibid. Sec. 9. Accordant.

them or their goods after it7. And the statute 4 Geo. I. c. 11, expressly excludes the principals from the benefit of clergy1.... 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 them9; or the forcibly boarding any merchant vessel, though without seising or carrying her off, and destroying or throwing any of the goods over board; 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 pirates convicted by virtue of this act are made felons without benefit of clergy l0..... 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 11, to be 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 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 imprisonment12. Lastly, by statute 18 Geo. II. c. 30, any natural born subject, or denizen, who in time of war shall commit

7. Herewith the laws of the U. S. in general agree, but with some small variance. Ibid. Sec. 8, and 12.

8. L. U. S. Ibid. Sec. 8, and 31. Accordant.

9. The offenders in these cases are not declared pirates; but are subject to fine and imprisonment. L. U. S. Ibid. Sec. 12.

10. Herewith, also, the laws of the United States, seem generally to agree. Ibid. Sec. 10.

11. L. V. 1785, c. 69,allowed a bounty not exceeding two per cent. of the value of the freight, ship, and goods.

12. L. V. 1785, c. 69, ad idem; but perhaps repealed by C. U. S.

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 13.

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

13. If any person shall commit upon the high seas, or in any river, haven, bason, or bay, out of the jurisdiction of any particular state, any offence which, if committed within the body of a county, would, by the laws of the United States be punishable with death; or if any captain or mariner shall piratically run away with his ship, or any goods or merchandize to the value of fifty dollars; or yield up his ship voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander to prevent his fighting in defence of his ship, or shall make a revolt in the ship, every such offender shall be deemed a pirate, and felon, and shall suffer death, upon conviction; and the trial in any such case shall be had where the offender is apprehended, or may be first brought.

And, if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, under colour of a commission or authority from any foreign power, upon the high sea, such offender shall, notwithstanding the pretence of such authority, be deemed a pirate, felon, arid robber, and on conviction shall suffer death. Accessories before the fact to any piracy whatsoever, which may affect the life of such pirate, on conviction, shall suffer death: and accessories after the fact, shall, on conviction, be imprisoned, not exceeding three years, and fined, not exceeding five hundred dollars. If any seaman or other person commit manslaughter on the high seas, or confederate, or attempt or endeavour to corrupt any master, officer, or mariner to yield up, or run away with any ship or goods, or to turn pirate, or to go over to, or confederate with pirates, or to trade with, or furnish any pirate with ammunition, stores or provisions of any kind; or fit out any vessel with design to trade with any pirate; or if any person shall any ways consult, combine, confederate, or correspond, with any pirate, knowing him to be guilty of any such piracy or robbery; or if any seaman shall confine the master of any ship, or endeavour to make a revolt therein, the offender on conviction shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 8. &c.

persons 14. 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 crimes branches itself into a much larger extent, than either of those of which we have already treated.

14. If any citizen of the United States shall, within the jurisdiction thereof, accept, and exercise a commission to serve a foreign power in war, he shall be deemed guilty of a high misdemeanor, and shall be fined not more than two thousand dollars, and imprisoned not exceeding three years, The enlisting or procuring another person to enlist in such service is punishable by fine net exceeding one thousand dollars, and imprisonment not exceeding three years. The fitting out and arming, or attempting, or procuring the same, of any ship with intent that she shall be employed in the service of any foreign power, or to commit hostilities upon any other foreign power, with whom the United States are at peace, or issuing or delivering within their jurisdiction a commission for any ship, to the intent that she may be so employed, are severally declared high misdemeanours, and the offenders shall be fined not exceeding five thousand dollars, and imprisoned not exceeding three years: and the ship &c. shall be forfeited. The augmenting the force of any armed ship within the jurisdiction of the United States, in time of war, between foreign powers, with whom the United States are at peace, is likewise punishable by fine and imprisonment. So also, the setting on foot any military enterprize or expedition, against the dominions of any foreign power with whom the United States are at peace. L. U. S. 3 Cong. c. 50, continued for two years longer. 4 Cong. c. 59, made perpetual. 6 Cong. c. 35.

If any citizen of the United States shall, without the limits of the same, fit out and arm any privateer, or attempt, or procure, or knowingly aid or be concerned in so doing, or in such attempt, with intent that such privateer shall be employed to cruise against any power with whom the United States are at peace, or upon the citizens of the U. States, or their property; or shall take the command, or enter on board of, or purchase an interest in such privateer, the offender shall be punished by fine not exceeding ten thousand dollars, and imprisonment not exceeding ten years. And the trial shall be had in the district where the offender shall be apprehended, or first brought. But nothing in the act shall be construed to prevent the prosecution or punishment of treason, or any piracy, defined by a treaty, or other law of the United States. L. U. S. 5 Cong. c. 1. This last is a perpetual act. If any citizen, or other person, shall go into any town, settlement, or territory, belonging, or secured by treaty, to any nation or tribe of Indians, and shall there commit robbery, larceny, trespass, or any other

crime, against the person or property of any friendly Indian, which would be punishable if committed within the jurisdiction of any state, against a citizen of the United States; or unauthorised by law, and with a hostile intention shall be found on any Indian land, he shall forfeit a sum not exceeding one hundred dollars, and be imprisoned not exceeding twelve months; and also forfeit and pay to the owner double the value of property taken, or destroyed: and if he be unable to pay, the United States shall make good the just value. But no Indian shall receive any recompence from the United States, if he or his nation shall have sought private revenge, or attempted to obtain satisfaction by any force or violence. L. U. S. 7 Cong. c. 13. Sec. 4. The same act makes the murder of an Indian within any of their towns, settlements or territories, punishable with death, and inflicts a fine not exceeding one thousand dollars, and imprisonment not exceeding twelve months upon any person making a settlement upon, or surveying, or attempting to survey, or designate any boundary of lands, within the Indian territory, by marking trees, or otherwise.

CHAPTER THE SIXTH.

OF HIGH TREASON.1

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

a Book I. ch. 10.

1. Treason against the UNITED STATES is defined by the constitution; the declaration of the punishment, ONLY, was left to congress. Yet congress have undertaken to define the offence, as well as to declare the punishment. The definition in the act of congress is affirmative only. That in the constitution is not only affirmative, but negative also; as will be shewn in its proper place. The difference is important.

crown, or dignity, is in some degree a breach of this duty of allegiance, whether natural and 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. Praemunire. 4. Other misprisions and contempts. Of which crimes the first and principal is that of treason.

Treason, proditio, in it's 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 lordc. 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 it's crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta proditio; being equivalent to the crimen laesae majestatis of the Romans, as Glanvild 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

b c. 1. Sec. 7.

c LL. Aelfredi, c. 4. Aethelst. c. 4. Cnuti. c. 54, 61.

d l. 1. c. 2. e Sp. L.b. 12. c. 7.

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 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 inconveniencies 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 2. In like manner as the lex Julia majestatis among the Romans, promulg[at]ed by Augustus Caesar, comprehended all the antient laws, that had before been enacted to punish trans-

f 1 Hal. P. C. 80. g Britt. c. 22. 1 Hawk. P. C. 34.

h Qui de nece virorum illustrium, qui consiliis et consistoria nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujuslibet postremo, qui militat nobiscum, cogitaverit: (eadem enim severitate voluntatem sceleris, qua effectum, punim[] jura voluerint) ipse quidem, utpote majestatis reus, gladio seriatur, bonis ejus omnibus fisco nostro addictis. (Cod. 9, 8, 5.)

2. There are no negative or restrictive words in the enacting clause of the statute of Edward the third; and the conduct of the judges in England seems to evince an opinion on their parts that the statute is not to be construed so strictly as the learned commentator seems in this place to suppose it ought. Stanford said, expressly, on the trial of sir Nicholas Throgmorton, that there remained divers treasons at common law, at that day (1 Mar.) which were not expressed by that statute. 1 St. Trials, 72. And Bromley, chief justice, said the same thing, in effect. Ibid. 73.

gressors against the state i. This statute must therefore be our text and guide, in order to examine into the several species of high treason3. And we shall find that it comprehends all kinds of high treason under seven distinct branches.

i Gravin. Orig. 1. Sec. 34.

3. "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid, and comfort." C. U. S. Art. 3.

There are several species of treason against the COMMONWEALTH as declared by the act concerning treason; viz.

"If any man do levy war against this commonwealth in the same, or he adherent to the enemies of the commonwealth, within the same, giving to them aid and comfort in the commonwealth or elsewhere, and thereof be legally convicted of open deed by the evidence of two sufficient and lawful witnesses, or their own voluntary confession, the cases above rehearsed shall be judged treason which extendeth to the commonwealth." L. V. Edi. 1794, c. 136.

On this we may remark.... first, that the war must be levied in the commonwealth; secondly, that the enemies must likewise be within the commonwealth to constitute the offence of treason in either of the cases provided for by this clause.

Also every person who shall erect, or establish, or cause or procure to be erected, or established, any government separate from, or independent of the government of Virginia, within the limits thereof, unless by act of the legislature of this commonwealth for that purpose first obtained; or who shall in any such usurped government hold or execute any office, legislative, executive, judiciary, or ministerial, by whatever name such office may be distinguished or called; or who shall swear, or otherwise solemnly profess allegiance or fidelity to the same; or who shall, under pretext of authority derived from, or protection afforded by such usurped government, resist or oppose the due execution of the laws of this commonwealth, shall be adjudged guilty of high treason. V. L. Ibid.

The preceding are the only cases of treason, either against the commonwealth of Virginia, or the United States of America, that exist at this day; and it is sincerely to be wished that the offence may never hereafter be extended any further.

"No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court."

C. U. S. Art. 3. §. 3.

The statute 25 Edw. III, requires two witnesses to convict a person of treason; but on the trial of lord Stafford, all the judges present

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 i: but the husband of such a queen is not comprized within these words, and 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 an 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.

j 1 Hal. P. C. 101.

l 3 Inst. 7. 1 Hal. P. C. 104.

k 3 Inst. 7. 1 Hal P. C. 106. m 1 Hawk. P. C. 36.

agreed that one witness to one overt act, and another to another overt act of the same species of treason, are two sufficient witnesses within the statute.. Foster, 237. The act concerning treason in Virginia, agrees with that statute: the constitution of the U. S. contains an important amendment on the subject.

Congress have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. C. U. S. Art. 3, §. 3, concerning which see note, p. 93.

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 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, farther, 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 Mathew 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 necessary follows, that the throne is thereby vacant, and he is no longer king.

n 1 Hal. P. C. 104.

o Vol. I. page 212.

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 into 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, shooting at a hart, the arrow glanced against a tree, and killed the king upon the spotr. But, as this compassing or imagination is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open, or overt, act. And yet the tyrant Dionysius is recorded s to have executed a subject, barely for dreaming that he had killed him; which was held for a 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 tl\e king, in it's 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,

p By the antient law compassing or intending the death of any man, demonstrated by some evident fact, was equally penal as homicide itself. (3 Inst. 5 )

q 1 Hal. P. C. 107. r 3 Inst. 6.

s Plutarch, in vit. t 3 Inst. 12.

u 1 Hal. P. C. 109.

as assembling and consulting on the means to kill the king, is a sufficient overt act of high-treason w.

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, of 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 *. These were esteemed hard cases: and the chief justice Markham rather chose to leave his place than assent to the latter judgmentx. But now it seems clearly to be agreed, that, by the common law and the statute of Edward III, words spoken amount only to a high misdemesnor, 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 connexion 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." If the words be set down in writing, it argues more deliberate intention; and it has been

w 1 Hawk. P. C. 38. 1 Hal. P. C. 119.

x 1 Hal. P. C. 115. y Cro. Car. 125.

* There was even a refinement and degree of subtlety in the cruelty of that case, for he wished it, horns and all, in the belly of him who counselled the king to kill it; and as the king killed it of his own accord, or was his own counsellor, it was held to be a treasonable wish against the king himself. 1 Hal. P.C. 115.

Christian.

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 it's 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 acts of that treason, which was specially laid in the indictmenta. 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 Sidney 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 questioned4.

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 knowlege, 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 he 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: in like manner as, by the feodal

z Cro. Car.[] 125. a Foster, 198. b 1 Hal. P. C. 118. 1 Hawk. P. C. 38. c 3 Inst. 9.

4. See the Note, page 76.

law, it was a felony and attended with a forfeiture of the fief, if the vasal vitiated the wife or daughter of his lordd; but not so, if he only vitiated his widow e5.

3. The third species of treason is, "if a man do levy war against our lord the king in his realm6." 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 pretendedf. For the law does not, neither can it, permit 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 inclosures, 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 7, But a tumult with a view to pull down a particular house, or lay open a particular inclosure, 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

d Feud. l. 1. t. 5. f 1 Hawk. P. C. 37.

e Ibid. t. 21.

g 1 Hal. P. C. 132.

5. See the note, page 76.

6. To levy war against the United States is treason against THEM. C. U. S. Art. 3. To levy war against the commonwealth of Virginia IN the same, is treason against the state, L. V. 1794, c. 136.

7. If such offences may be considered as amounting to the levying of war, where no other evidence of the object but the universality of it should appear, it must be treason against the state, and not against the United States.

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 Glocester, 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 misdemesnor j. 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 i 8.

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 treason9. This must likewise be proved by some overt act, as by giving them intelligence*, by sending

h Robertson Cha. V. i. 45, 286. i 3 Inst. 9. Foster. 211, 213.

j 1 Hal. P. C. 136. * 1 Burrow, 650.

8. But a bare conspiracy in a slave to rebel, or make insurrection, or in any free person conspiring with any slave to do so; amounts to felony without benefit of clergy; by the acts of 1794, c. 103, and 1797, c. 4, which declare that if any negroe or other slave, shall consult, advise, or conspire to rebel, or make insurrection, or shall plot or conspire the murder of any person whatsoever, every such consulting, plotting, or conspiring, shall be adjudged felony without benefit of clergy. And every free person who shall advise, or conspire with a slave to rebel, or make insurrection; or shall advise, or assist such slave in the murder of any person whatsoever, shall be guilty of felony without benefit of clergy. But the punishment of the free person seems now to be changed to hard labour and imprisonment in the penitentiary house. V. L. 1799, c. 58.

A combination or conspiracy to oppose any measure of the government of the United States, &c. whether such conspiracy, &c. have the proposed effect, or not, declared to be a high misdemeanor, and punishable by fine not exceeding five thousand dollars, and imprisonment not less than six months, nor exceeding five years. L. U. S. 5 Cong. c. 91, limited to March 3, 1801.

9. Adhering to the enemies of the United States, giving them aid and comfort, is treason against THEM. C. U. S. Art. 3. Adhering to the enemies of the commonwealth of Virginia within the same, giving them aid and comfort in the commonwealth, or elsewhere, is treason against the state. L. V. 1794, c. 136.

them provisions, by selling them arms, by treacherously surrendering a fortress, or the like k. By enemies are here understood the subjects of foreign powers with whom we are at open war10. 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 l, or else in that of levying war against his majesty 11. 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 m 12 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 n. 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

k 3 Inst. 10. m Ibid. 216.

l Foster, 219.

n 1 Hawk. P. C. 38.

10. Quere: Whether an actual declaration of war be necessary in the United States, in order to constitute such a state of open war as may involve the citizens of the United states in the guilt of high treason. It is generally held by the English jurists, that it is not. See Hales. H. P. C. Vol. I. c. 15. Foster, 219. §. 12.

11. There is, I conceive, room for doubt upon this subject in the United States. The act of 1 Cong. 2 Sess. c. 9. Sec. 10, and 11, seems, (and with reason) to make the offenders in such cases accessories to the piracy, only.

12. On this subject, likewise, there is room for doubt. The doctrine here laid down seems to be upon this principle: that in case of treason, whatever act would make a man an accessory in felony, will make him a principal offender in treason. A doctrine which will be examined in the Appendix. Note B.

kingdom, provided he leaves them whenever he hath a safe opportunity o 13.

5. "If a man counterfeit the king's great or privy seal," this is also high treason14. But if a man takes 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 glewed 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 then 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 p 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,

o Foster, 216.

p 3 Inst. 16.

13. See the note, page 76.

14. Neither the congress of the United States, nor the legislature of the commonwealth have as yet declared the bare counterfeiting the public seal of the federal or state government, to be an offence, of itself. But if such seal were used in the counterfeiting or forging any certificate, indent, or other public security, to which a seal was by law necessary to be affixed, it might bring the offence under the laws which respect counterfeits and forgeries. 1 Cong. 2 Sess. c. 9. §. 14, and L. V. 1794, c. 133. §. 3.

But, by the laws of Virginia, it is felony to counterfeit or to aid, abet or assist in safely keeping or counterfeiting any instrument in likeness of the seal of the register of the land-office; or to have the same in possession and willfully conceal it, knowing it to be counterfeit. L. V. 1794, c. 133. §. 6..

knowing the money to be false, to merchandize 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 not15. Also if the king's own ministers alter the standard or alloy established by law, it is treason16. But gold and silver money only are held to be within the statute 1. 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 r. But of this we shall presently say more.

7. The last species of treason ascertained by this 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 assise, 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 to wounding, or a bare attempt to kill them. It extends also only to the officers therein specified; and therefore the barons of the exchequer, as such, are not within the protec-

q 1 Hawk P. C. 42.

r 1 Hawk. P. C. 43.

15. If any person shall counterfeit, aid or abet in counterfeiting any coin made current in this commmonwealth, or shall make, assist aid or abet in making base coins, or shall pass any such counterfeit or base coin in payment, knowing the same to be counterfeit, every such person shall, on legal conviction, suffer death without benefit of clergy. L. V. 1794, c. 133. The punishment is now changed to imprisonment in the penitentiary house, not less than four, nor more than fifteen years, and a fine not exceeding one thousand dollars. Laws of Virginia, sessions of 1796, c. 2. §. 9.

As the act of 2 Cong. c. 49, establishing the rate of foreign coins passed after this act, it may be questioned, how far the words, "made current" may apply to the coin thereby made current.

16. To debase the standard of the coin, or to make it of less weight, or to embezzle any part of the metals, by any officer or person employed in the mint of the United States, is felony, and the punishment death. L. U. S. 2 Cong. c. 15. §. 19.

tion of this act s: 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. & M. c. 21 17.

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 docs 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 case 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 shewed and declared before the king and his parliament, whether it ought to be judged treason, or other felony." Sir Matthew Hale t 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 overhasty 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 18.

s 1 Hal. P. C. 231.

t [1] Hal. P. C 259.

17. It is obvious, after what has been already so frequently repeated, that the offences here spoken of have no correlative either in the United States, or in the state government.

18. Notwithstanding what is here said, the doctrine of constructive treason hath been very liberally indulged by the judges in Eng-

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; which seems to be founded upon 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

land, who have not hesitated to pronounce many cases treason, which are neither within the words nor the spirit of the statutes 25 Edw. 3, and 1 Mar. I shall select two, only.

"If three or four do talk, devise, and conspire together of a traiterous act to be done, and afterwards one of them, only, doth commit the treason, the law doth repute it the act of every one of them." 1 State Trials, 73. Sir Nicholas Throgmorton's case.

"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 treason." Ante, page 35.

These constructions appear to be either the impure dregs of those foul judgments, which it was the manifest intention of the statutes of Edward, and of first of Mary, to correct and cleanse from their poisonous qualities, or to have sprung out of the context of those violent and extravagant statutes concerning treason which have been from time to time passed in England, from the reign of Edward the third to that of the house of Hanover. Sir Nicholas Throgmorton, whose trial happened within six months after the statute of 1 Mar. c. 1, whereby it was declared, that no act, made treason by act of parliament, should thereafter be adjudged treason, but only such as were declared to be treason by the statute 25 Edw. 3, made the following reply to his judges upon the subject.

"I do confess, that at such time when there were statutes provided for the procurer, counsellor, aider, abettor, and such like, as there were in king Henry the eighth's time, you might lawfully make this cruel construction, and bring the procurer within the compass of the law. But these statutes being repealed, you ought not now to do so." State Trials, vol. 1, p. 73. That such constructions should have found their way to America, as they appear to have done on one occasion, must be matter of regret to every friend of his country. See the Trial of Fries, p. 196 to 199.

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 u, 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 reign 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 Welchmen; 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 licence, 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, without 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 Cleve; derogating from the king's royal stile and title; impugning his supremacy; and assembling riotously to the number of twelve, and not dispersing upon proclamation: all which new-fangled treasons were totally abrogated by the statute 1 Mar. c. 1, 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.

u Stat. 1 Hen. IV, c. 10.

These new treasons, created since the statute 1 Mar. c. 1, and not comprehended under the description of statute 25 Edw. III, I shall comprize 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 misdemesnor; 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. 1. 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 temporal 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 19."

w Sir T. Raym. 377. x Latch. 1.

19. We may hope that this class of offences will never have existence as such in the United States. Congress shall make no law res-

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 burnt 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 to the sovereign. And therefore, both this and it's 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 Glanvila, Bracton b, and Fletac) than by Constantine and our Edward the third, a species of the crimen laesae majestatis, or high treason. For this confounds the distinction

y C. 9, 24, 2. Cod. Theod. de falsa moneta. l. 9. z Pott. Ant. b. 1. c. 26. a l. 14 c. 7. b l. 3. c. 3. Sec. 1 and 2. c l. 1. c. 22.

pecting an establishment of religion, or prohibiting the free exercise thereof. Amendments to C. U. S. Art. 3. See also bill of rights of Virginia, Art. 16, and L. V. 1794, c. 20.

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 treasond: 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 it's punishment.

In consequence of the principle thus adopted, the statute 1 Mar. c. 1, having at one stroke repealed all intermediate treason created since the 25 Edw. III, it was thought expedient by stat. 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 stat. 1 and 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 consent, 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; to-

d 1 Hal. P. C. 224.

e Ff. 48, 4, 6.

gether 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, 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 offence 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 and 9 W. III, c. 26, made perpetual, by 7 Ann. 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; 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 farther, 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 months after the commission of the offence: except those for making or mending 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. And, lastly, by statute 15 and 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 halfpenny 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 kind20.

f Stat, 7 Ann. c. 25.

20. See the notes page 84, and the laws of the U. S. 2 Cong. c. 15, §. 19, and L. V. 1794, c. 133, and 1796, c. 2, §. 9, there referred to.

3. The other new 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 comprized 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 Ann. 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 overt act, such offence shall be high treason. And by statute 6 Ann. 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 misdemesnor, punishable with forfeiture of goods and chattels, even in the most flourishing aera of indefeasible hereditary right and jure divino succession. But it was again raised into high treason, by the statute of Anne be-

fore-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 21 g.

Thus much for the crime of treason, or laesae majestatis, in all it's 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 it's primitive idea. But of this enough has been hinted already; it is now time to pass on from defining the crime to describing it's 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 connivanceh, 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 j. 2. That he he 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 he divided into four parts. 6. That his head and quarters be at the king's disposal i.

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 com-

g State Tr. IX. 680. h 33 Ass. pl. 7.

j 1 Hal. P. C. 382.

i This punishment for treason, sir Edward Coke tells us, is warranted by divers examples in scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.)

21. We may hope that this class of treasons will never again be recognized as the law of the land in the United States; being, if ever in force here, repealed by the revolution.

mandk. 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 l. But of this we shall say more hereafterm.

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 n. 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 o 22.

The consequences of this judgment, (attainder, forfeiture, and corruption of blood) must be referred to the lattter end of this book, when we shall treat of them all together, as well in treason as in other offences 23.

k 1 Hal. P. C. 351.

m See c. 32.

o 2 Hal. P. C. 399.

1 3 Inst. 52. n 1 Hal. P. C. 351.

22. Cruel and unusual punishments ought not to be inflicted. Virginia Bill of Rights, Art. 9, and by the amendments to the constitution of the United States, they shall not. Art. 10.

23. The punishment of treason against the United States, as declared by congress in pursuance of Art. 3. §. 3, of the constitution, is death, by hanging. L. U. S. 1 Cong. 2 Sess. c. 9. § 1, 33.

No attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. C. U. S. Art. 3. §. 3. No conviction or judgment for treason shall work corruption of blood or any forfeiture of estate. L. U. S. 1 Cong. 2 Sess. c. 9. §. 24.

Treason against the commonwealth of Virginia was at first punished with death, and the forfeiture of lands and goods, saving to widows their right of dower. V. L. Oct. 1776, c. 3. Edi. 1785. In the year 1789, forfeiture was abolished, in all cases of attainder of trea-

son or felony. V. L. 1794, c. 74. §. 31, and in 1796, the punishment of death, in cases of treason, was changed to imprisonment in the penitentiary house for a period not less than six nor more than twelve years. L. V. 1796, c. 2. By the act of 1802, c. 4. L. V. Every person guilty of high treason, his aiders, abettors and councellors, shall, on conviction, be adjudged felons, and suffer death by hanging.

For a more connected view of the subject of treason, see the appendix to this volume, note B.

CHAPTER THE SEVENTH.

OF FELONIES INJURIOUS TO THE KING'S PREROGATIVE.

AS, 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, comprizes every species of crime, which occasioned at common law the forfeiture of lands or goods. This most frequently happens in those crimes, for which a capital punishment either is, or was, liable to be inflicted: for these 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 comprized under the name of felony: and in confirmation of this we may observe, that the statute of treasons, 25 Edward III, c. 2, speaking of some dubious crimes, directs a reference to parliament; that it may be there 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

a 3 Inst. 15.

that this is likewise the case with some other offences, which are not punishable 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 guilt1.

To explain this matter a little farther: 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, fhloj, 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 ammo 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 itc: in which language indeed, as the word is clearly of feodal original, we ought rather to look for it's 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 consideration for which, a man gives up his fief; as we say

b 1 Inst. 391.

c Glossar tit. Felon.

1. Although forfeiture, as well of lands as of goods is abolished in Virginia; yet this will not alter the nature of felony; but all offences which induced a forfeiture at the common law, or which have been declared capital by statute, still remain felonies, as if the consequences were still the same, as before the act of 1789, c. 30. §. 13. Edi. 1794, c. 74. See note, page 5.

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.

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 estatesd, are stiled 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 vasal, by the same acts as the vasal would have forfeited his feud to the lord. "Si dominus commisit feloniam, per quam vasallus amitteret feudum si eam commiseret in dominum, feudi proprietatem etiam dominus perdere debet n." One instance given, of this sort of felony in the lord, is beating the servant of his vasal, so as that he loses his service; which seems merely in the nature of a civil injury, so far as it respects the vasal. And all these fe-

d See Vol. II, p. 284. e Feud, l. 2, t. 16. in calc.

f Feud, l. 1, t. 21. g Feud, l. 2, t. 24.

h Feud, l. 2, t. 34. l. 2, t. 26, Sec. 3.

i Feud, l. 2, t. 22. k Feud, l. 2, t. 24, Sec. 2.

l Feud, l. 1, t. 5. m Feud, l. 2, t. 38. Britton, l. 1 c. 22.

n Feud, l. 2, t. 26, & 47.

lonies 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 a small deflexion 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 of 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 rude 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.

The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them;

o 3 Inst. 43.

p 1 Inst. 391.

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 imbezzling 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 misdemesnors 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,

q 1 Hawk. P C. 107. 2 Hawk. P. C 444.

2 The benefit of clergy is abolished in the case of free persons, both in the federal, and state government, L. U. S. 1 Cong. 2 Sess. c. 9. §. 31. L. V. 1796. c. 2. §. 13. But it still seems to remain in the case of SLAVES, under the laws of the state.

upon pain of forfeiture thereof. 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. By statute 3 Hen. V. st. 1, to make, coin, buy, or bring into the realm any gally-halfpence, suskins, or dotkins, in order to utter them, is felony; and knowingly to receive or pay either them or blanks r is forfeiture of an 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. By statute 13 and 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 and 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 and 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 sale 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 it's 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 and 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. But these precautions not being found sufficient to prevent the uttering of false or diminished money, which was only a misdemesnor at r Stat. 2 Hen. VI, c. 9.

common law, it is enacted by statute 15 and 16 Geo. II. c. 28, that if any person shall utter or tender in payment 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. 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 halfpence 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 off; shall be guilty of single felony. 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 finess, shall be imported into Great Britain or Ireland, the same shall be forfeited in equal moieties to the crown and prosecutor. Thus much for offences relating to the coin, as well misdemesnors as felonies, which I thought it most convenient to consider in one and the same view 3.

3. If any person shall counterfeit, aid or abet in counterfeiting any coin made current within this commonwealth; or shall make, or assist, aid, or abet in making base coin, or shall pass any such counterfeit or base coin in payment knowing the same to be counterfeit, or base, every such person shall on legal conviction suffer death without benefit of clergy. L. V. 1794, c. 133. But the punishment is now changed to imprisonment in the penitentiary house, not less than four, nor more than fifteen years, and a fine not exceeding one thousand dollars. L. V. 1796, c. 2. §. 9.

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 houshold conspires or confederates to kill any lord of this realm, or other person, sworn of the king's council, he shall be guilty of felony. Secondly, by statute 9 Ann. 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 clergy4.

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 a conspiracy against his natural sovereign. And farther, 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 licence 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

s See Vol. I, p. 334.

Quere: If the counterfeiting any coin made current after the passing of this act, be within the act. The act of 2 Cong. c. 49, was subsequent to the above recited act.

If any of the gold or silver coins which shall be struck at the mint shall be debased, or be of less weight or value than it ought to be through the default or connivance of any officer, or person employed at the mint with any fraudulent intent, and if any of the said officers or persons, shall embezzle any of the metals committed to their charge to be coined, or any of the coins which shall be struck or coined at the mint, every such officer or person who shall commit either of the said offences, shall be deemed guilty of felony and shall suffer death. L. U. S. 2 Cong. c. 15. Sec. 19. 4. This class of felonies is obsolete in Virginia.

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 5.

5. Any citizen of the U. S. accepting, or exercising within the U. S. a commission from a foreign prince or state, shall be fined not exceeding two thousand dollars, and imprisoned not exceeding three years; and any person in the U. S. enlisting, or hiring another to enlist or go beyond the limits thereof, to enter into the service of a foreign state, shall be fined not exceeding one thousand dollars, and imprisoned not exceeding three years.

Any person in the U. S. who shall fit, or attempt to fit out, any privateer, or be concerned therein, with intent to commit hostilities against any foreign state, with whom the U. S. are at peace, or shall issue or deliver a commission for any ship, shall be fined not exceeding five thousand dollars, and imprisoned not exceeding three years; and the vessel, with all her materials, shall be forfeited.

Any person who shall, within the U. S. augment, or be concerned in augmenting the force of any armed vessel belonging to a foreign state, shall be fined not exceeding one thousand dollars, and imprisoned not exceeding one year.

Any person preparing, or setting on foot within the U. S. any military expedition against a foreign nation with whom the U. S. are at peace, shall be fined not exceeding three thousand dollars, and imprisoned not exceeding three years. L. U. S. 3 Cong. c. 50.

The above act was continued for two years. L. U. S. 4 Cong. c. 59, and was made perpetual by the act of 6 Cong. c. 35.

One Isaac Williams was indicted in the federal district court of Connecticut, for having, on the 27th of February, 1797, at Guadaloupe, accepted from the French republic a commission against the king of Great Britain, contrary to the 21st article of the treaty with Great Britain; the said Isaac Williams then being a citizen of the U. S.... the French republic then being at war with the king of G. B. and the said king then being in amity with the U. S. On the trial, the defendant admitted the facts alleged in the indictment; but, in his defence, offered to prove, that he was naturalized in the various offices at Rochfort, in France, in the autumn of 1792, (two years before the treaty was made, and some months before the war between Great Britain and France begun) renouncing his allegiance to all other countries, particularly to America; and taking the oath of allegiance to

4. Felony, by imbezzling 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 Icing's soldiers or mariners; shall, either for gain, or to impede his majesty's service, imbezzle the same to 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, and

the republic of France, all according to the laws of the said republic; and immediately received a commission in the navy of the republic; and had not since.been a resident in the United States more than six months, in the year 1796, when he came merely on a visit to his relations and friends; and that for three years past he had been domiciliated in the Island of Guadaloupe.

The attorney for the district conceded his statement to be true. Judge Elsworth, chief justice of the United States, instructed the jury, "that the common law of this country remains the same as it was before the revolution;" that the policy of the United States does not permit emigration; that the facts offered to be proved by the prisoner were totally irrelevant, and could have no operation in law in his case.

The jury found him guilty; and the court fined him one thousand dollars, and sentenced him to four months imprisonment. He was tried on a second indictment for capturing a British ship, on the high seas, in a privateer commissioned by the French republic, was found guilty, and received a similar sentence.

On this case we may observe;

1. The fact of expatriation was admitted; no objection was made as to the form; the right only was denied.

2. The offence, if any, of accepting a commission under the French republic, was completed before the treaty with Great Britain, and before the commencement of the war between that nation and France.

The treaty declares, that the subjects and citizens of the two nations shall not do any act of hostility or violence against each other, nor accept commissions or instructions so to act, from any foreign prince or state, enemies to the other party, &c.

The fact of expatriation, antecedent to the war, and antecedent likewise to the treaty of London being conceded, the question therefore must have turned merely upon the right of doing so.... See Appendix to vol. first, part second, note K.

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 6. Other inferior imbezzlements and misdemesnors, that fall under this denomination, are punished by statutes 9 and 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. 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 7.

5. Desertion from the king's armies in time of war, whether by land or sea, in England or in parts beyond the seas, 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 and 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 penalties8.

6. The laws of the United States impose a fine not exceeding fourfold the value of the property stolen, embezzled, or purloined; and

whipping, not exceeding thirty-nine stripes. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 16.

7. The wastefully expending, or embezzlement of military or other

stores in the vessels of the U. S. or unlawfully burning or setting fire to any kind of public property, is punishable by sentence of a court martial. L. U. S. 5 Cong. c. 130. 6 Cong. c. 33.

8. See L. U. S. 1 Cong. 2 Sess. c. 10. 4 Cong. c. 39. §. 17. ,5 Cong. c. 64. §. 8, and c. 130. §. 1. Art. 44, and 6 Cong. c. 33. Art. 16, 17. And by the act of 7 Cong. c. 9, any person who shall entice a soldier to desert, or shall purchase his arms, uniform, cloathing, or any part thereof, and every master of a vessel employing a soldier as one of his crew, knowing him to have deserted, or otherwise carrying him away, or refusing to deliver him up, shall, upon conviction, be fined at the discretion of any court having cognizance of the same, not exceeding three hundred dollars, or be imprisoned, not exceeding one year.

CHAPTER THE EIGHTH.

OF PRAEMUNIRE.

A THIRD species of offence more immediately affecting the king and his government, though not subject to capital punishment, is that of praemunire: so called from the words of the writ preparatory to the prosecution thereof; "praemunirea 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 writb. It took it's original from the exhorbitant power claimed and exercised in England by the pope, which 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,

a A barbarous word for praemoneri. b Old Nat. Brev. 101. edit. 1534.

and hath been (as her prelates on a trying occasion once expressed itc) 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 acknowlege 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 law-giver, 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 chapter rather leads us to consider the vast strides, which were formerly made

c Address to James II, 1687.

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 vigour 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 aera 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 rivetting 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 farther 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 conscience and minds of the people, the Romish clergy 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 great 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 it's attention began very early to be rivetted 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, injoined penance pro salute animae, 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 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 a canonical obedience was copied from the oath of Fealty required from the vasal 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 vasals, 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 bishoprick or abbey: "etiamsi ad ilia personae 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 foedal 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 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 bishopricks, that antient prerogative of the crown,

d Extrav. l. 3. t 2. c. 13.

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 it's 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 for ever St. Peter's patrimony; and the dastardly monarch re-accepted his sceptre from the hands of the papal legate, to hold as the vasal 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 masterpiece of papal policy. Not content with the ample provision of tithes, which the law of the land had given to the parochial clergy, they endeavoured 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 it's 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 deaths would atone for a life of incontinence, disorder, and bloodshed. Hence innumerable abbeys and religious houses were built within a century 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 it's clergy from any intercourse with the civil magistrate: such as the separation of the ecclesiastical court from the temporal; the appointment of it's 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 courtse, as well as of purchases in mortmainf, have already been fully discussed in the preceding volumes: and we shall have an opportunity of examining at large the nature of the privilegium clericale in the progress of the present book. 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 along 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 what might befal that posterity to which they bore no endearing relation: yet it vanished into nothing, 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 acknowleging 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 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 Eng-

c See Vol. III, p. 61.

f See Vol. II, p. 268.

land, let us now return to the statutes of praemunire, which were framed to encounter this overgrown yet encreasing evil. King Edward I, a wise and magnanimous prince, set himself in earnest to shake off this servile yokes. 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 seising the temporalties 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 gulph, 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 statute against papal provisions, being, according to sir Edward Coke i, the foundation of all the subsequent statutes of praemunire, 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 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, A. D. 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 pro-

g Dav. 83, &c.

h Bro. Abr. tit. Coron. 115. Treason. 14 5 Rep. part 1. fol. 12. 3 Ass. 19.

12 Inst. 583. k Mod. Un. Hist. xxix. 293.

visors1, which enact severally, that the court of Rome shall not present or collate to any bishoprick 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 vasalage 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 shall 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 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. 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 praemunire facias, being as (we said) used to command a citation

1 Stat. 25 Ed. III, st. 6. 27 Ed. III, st. 1. c. 1. 38 Ed. III, st. 1. c. 4, and st. 2, c. 1, 2, 3, 4. m Seld, in Flet. 10. 4.

of the party, have denominated in common speech not only the writ, but the offence itself of maintaining the papal power, by the name praemunire. And accordingly the next statute I shall mention, which is generally referred to by all subsequent statutes, it is usually called the statute of praemunire. 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 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 council: or process of praemunire 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 praemunire. 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 against 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 farther 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 it's branches. For, first, the application, which he probably means, was made not by the bishops only, but by the unanimous consent of a provincial synod, assembled in 1439, 18 Hen. VI, that very synod which at the same time refused to confirm and allow a pa-

n Dav. 96.

pal bulle, which then was laid before them. Next the purpose to 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 aforcecd 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 occasion o.

And 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 it's 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 liegance, 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 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 praemu-

o Wilk. Concil. Mag. Brit. III 533.

nire, ("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.

This then is the original meaning of the offence, which we call praemunire; viz. introducing a foreign power into this land, and creating imperium in imperio, by paying that obedience to papal process, which constitutionally belonged to the king alone, long before the reformation in the reign of Henry the eighth: at which time the penalties of praemunire 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 licence or dispensation; or to obey any process from thence; are made liable to the pains of praemunire. And, in order to restore to the king in effect the nomination of vacant bishopricks, 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 praemunire. Also by statute 5 Eliz. c. 1, to refuse the oath of supremacy will in-

p See Wilk. Concil. Mag. Br. Vol. III. passim. and Dr. Duck's life of archbishop Chichele, who was the prelate here spoken of, and the munificent founder of All Soul's college in Oxford; in vindication of whose memory the author hopes to be excused this digression; if indeed it he a digression, to shew how contrary to the sentiments of so learned and pious a prelate, even in the days of popery, whose usurpations were, which the statutes of praemunire and provisions were made to restrain.

cur the pains of praemunire; and to defend the pope's jurisdiction in this realm, is a praemunire 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 a praemunire. But importing or selling mass-books, or other popish books, is by statute 3 Jac. I. c. 5. §. 25, only liable to a 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 praemunire.

Thus far the penalties of praemunire 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. & Mar. c. 8, to molest the possessors of abbey lands granted by parliament to Henry the eighth, and Edward the sixth, is a praemunire. 2. So likewise is the offence of acting as a broker or agent in any usurious contract, where above ten per cent. interest is taken, by statute 13 Eliz. c. 10. 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 praemunire, by statute 21 Jac. I. c. 3. 4. To obtain an exclusive patent for the sole making or importation of gun powder or arms, or to hinder others from importing them, is also a praemunire by two statutes: the one 16 Car. I. c. 21, the other 1 Jac. II. c. 8. 5. On the abolition, by statute 12 Car. II. c. 24, of purveyance q, and the prerogative of pre-emp-

q See Vol. I. page 287.

tion, 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 praemunire. 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 praemunire by statute 13 Car. II. c. 1. 7. By the habeas corpus act also, 31 Car. II. c. 2, it is a praemunire, 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. & 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 praemunire; and by the statute 7 & 8 W. III. c. 24, serjeants, counsellors, proctors, attorneys, and all officers of courts, practising without having taken the oaths of allegiance and supremacy, and subscribed the declaration against popery, are guilty of a praemunire, whether the oaths be tendered or no. 9. By the statute 6 Ann. c. 7, to assert maliciously and directly, by preaching, teaching, or advised speaking, that the then protended 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 praemunire: as writing, printing, or publishing the same doctrines amounted, we may remember, to high treason. 10. By statute 6 Ann. c. 23, if the assembly of peers of 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 praemunire. 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 praemunire. 12. The statute 12 Geo.

r See Vol. I. page 138. Vol. III. page 137.

III. c. 11, subjects to the penalties of the statute of praemunire 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 crowns.

Having thus inquired into the nature and several species of praemunire, it's 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; or (as other authorities have it) during life u:" both which amount to the same thing; as the king, by his prerogative, may, at 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 praemunire, 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 praemunire, any law, statute, opinion, or exposition of law to the contrary notwithstanding. But still such delinquent, though protected as a part of the public, from public wrongs, can bring no action for any private in-

s See Book I, c. 4. t 1 Inst. 129.

u 1 Bulst. 199.

w Slat 25 Edw. III, st. 5, c. 22.

x Bro. Abr. t. corone, 196..

jury, 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 1.

y 1 Hawk. P. C. 55.

1. The statutes relative to this offence are either obsolete or repealed. L. V. 1794, c. 147. See Note, page 33.

CHAPTER THE NINTH.

OF MISPRISIONS AND CONTEMPTS, AFFECTING THE KING AND GOVERNMENT.

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 star-chamber 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 misdemesnor: 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.

I. Of the first, or negative kind, is what is called misprision of treason; consisting in the bare knowlege and concealment of


a Yearb 2 Ric. III. 10. Staundf. P. C. 37. Kel. 71. 1 Hal. P. C. 374. 1 Hawk. P. C 55, 56.

b Hudson of the court of star-chamber. MS. in Mus. Brit.

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 knowlege 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 and 2 Ph. and Mar. c. 10, that a bare concealment of treason shall be only 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 assise or justice of the peace d. But, if there be any probable circumstances of assent, as if one goes to a treasonable meeting, knowing before hand 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.

There is also one positive misprision of treason, created so by act of parliament. The statute 13 Eliz. c. 2, 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 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 lands, during life, forfeiture of goods, and imprisonment during life f. Which total forfeiture of the goods was originally inflicted while the 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 law1.

c Guicciard. Hist b. 3 and 13. d 1 Hal. P. C. 372.

e 1 Hawk. P. C. 56. f 1 Hal. P. C. 374. g See page 94.

1. Misprisions of treason, or felony, at common law, continue to be offences against the state of Virginia, in virtue of the adoption of

Misprision of felony is also the concealment of a felony which n 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 2."

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 j, but now only by fine and imprisonment i 3.

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

h 1 Hal. P. C. 375. i 3 Inst. 133.

j Glanv. l. 1. c. 2.

the common law therein. L. V. October 1776, c. 5. Edi. 1794, c. 147.

Any person knowing of the commission of any treason against the United States, who shall conceal, and not as soon as may be disclose the same to the president, or some one of the judges of the U. S. or to the governor, or some one of the judges or justices of a state shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars. L. U. S. 1 Cong. 2 Sess. c. 9. §. 2.

2. Misprision of felony against the United States, consists in the concealment of any murder, or other felony upon the high seas, or elsewhere within the sole and exclusive jurisdiction of the United States, of the actual commission of which any person may have knowlege, and is punishable by fine, not exceeding five hundred dollars, and imprisonment not exceeding three years. L. U. S. Ibid. §. 6.

3. We may presume this offence to be obsolete in Virginia.

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 house of peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability4. Hitherto also may be referred the offence of imbezzling the public money, called among the Romans peculates, which the Julian law punished with death in a magistrate, and with deportation, or banishment, in a private person k 5. With us it is not a capital crime, but subjects the committer of it to a discretionary fine and imprisonment. 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 invasion16. Under

k Inst. 4, 18, 9.

11 Hawk. P. C. 59.

4. The president, vice president, and all civil officers of the United States, may. be impeached for treason, bribery, or other high crimes and misdemeanours; and, upon conviction shall be removed from office, and disqualified to hold any office of honor, trust, or profit under the United States; and shall, moreover, be liable and subject to indictment, trial, judgment, and punishment, according to law. C. U. S. Art. 2. §. 4. Art. 1. §. 3.

The governor, when he is out of office, and others offending against the state, either by mal-administration, corruption, or other means by which the safety of the state may be endangered, are impeachable by the house of delegates; and, upon conviction, may be removed from office altogether, or pro tempore, or disabled or subjected to such pains and penalties as the laws direct. C. V. Art. 16.

5. Debasing the coin of the United States, or embezzling it, or any of the metals sent to the mint to be coined by any officer, or other person employed in the mint, is felony, and punishable with death. L. U. S. 2 Cong. c. 15. §. 19.

6. See L. U. S. 3 Cong. c. 101. §. 5, which authorises the president to call forth the militia of the several states.

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 7. Contempts against the prerogative may also be, by preferring the interests of a foreign potentate to those of our 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 8. 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 the seas, (for disobedience to which his lands shall be seis-

m Lamb. Eir. 315.

n 3 Inst. 144.

7. See L. V. 1794, c. 81.

8. No person holding any office of profit or trust under the United States, shall, without the consent of congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. C. U. S. Art. 1. Sec. 9.

To this head we may refer the act made on the occasion of doctor Logan's correspondence with some of the French ministers, in the year 1798, by which some persons have supposed that an actual war with France was prevented; but which gave such umbrage to the then prevailing party in the administration of the government of the United States, that an act was passed the succeeding session, declaring, that if any citizen of the United States, wheresoever residing, shall, without the permission or authority of the government of the United States, directly or indirectly, commence or carry on any verbal or written correspondence or intercourse with any foreign government, or it's agents, with intent to influence the measures thereof in relation to any dispute or controversy with the United States, or defeat the measures of the government; or if any citizen of the United States, residing within the same, and not duly authorised, shall counsel, advise, aid, or assist in any such correspondence, with intent as aforesaid, he shall be deemed guilty of a high misdemeanour, and, on conviction, shall be fined not exceeding five thousand dollars, and imprisoned not less than six months, nor more than three years. L. U. S. 5 Cong. c. 106. See also L. U. S. 6 Cong. c. 5, prohibiting the sending or carrying any talk, &c. to any Indian nation, tribe, or chief.

ed 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 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. 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 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 tranquility, 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 9.

o See Vol. I. p. 266. q Hawk. P. C. 60.

p 1 Hawk. P. C. 60.

r Mod. Un. Hist. xxix. 28, 119.

9. To this or the foregoing head we must refer that part of the act of 5 Cong. c. 91. Sec. 1, which declares that if any persons shall unlawfully combine or conspire together to oppose any of the measures of the government of the United States, or to intimidate or to prevent any officer thereof from doing his duty; or shall counsel advise or attempt to procure any insurrection, riot, unlawful assembly or combination, whether the same shall have the proposed effect, or not, every person thereof convicted shall be deemed guilty of a high mis-

4. Contempts against the king's title, not amounting to treason or praemunire, 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 praemunire. This

s See page 91.

demeanor, and fined not exceeding five thousand dollars, and imprisoned, not less than six months nor more than five years; and may be bound to his good behaviour in the discretion of the court. Limited to March 3, 1801.

To this head, likewise must be referred, the second clause of the same act, commonly called the sedition law, which probably excited more apprehension, and greater indignation in many parts of the U. States, and particularly in Virginia, than any other measure of the federal government had done before: being supposed by many to amount to a most flagrant violation of the constitution of the United States; one of the amendments to which, Art. 3, expressly declares, that congress shall make no law respecting religion or abridging the FREEDOM of speech, or of the press; in the face of which, this obnoxious act was made: declaring, "that if any person shall write, print, utter, or publish or cause or procure to be written, printed, uttered or published, or knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous, and malicious writing against the government, or either house of congress, or the president of the United States, with intent to defame or bring them or either of them into contempt or disrepute, or to excite against them or either of them the hatred of the good people of the U. States, or to stir up sedition within the United States, or to excite any unlawful combinations therein for opposing or resisting any law or act done by the president, in pursuance of any law; or of the powers vested in him by the constitution; or to resist, oppose or defeat any such law, or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, any such person, on conviction shall be fined not exceeding two thousand dollars and imprisoned not exceeding two years.

It was further declared that the truth might be given in evidence upon the trial of every person prosecuted thereupon.

The legislatures of Kentucky, and Virginia protested against this act as unconstitutional; it nevertheless withstood every attempt to repeal it. After a very hard struggle to continue it, the bill for that purpose was rejected in the house of representatives of congress February 21, 1801, by a majority of 53 members against 50, and the act expired with the administration which formed it, on the third of March, succeeding.

heedless species of contempt is however punished by our law with fine and imprisonment. Likewise if any person shall in any wise hold, affirm 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 misdemesnor, 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 acting 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 10. 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 praemunire: 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

10. The senators, and representatives in congress, the members of the several state legislatures, and all executive and judicial officers both of the United States and the several states must take an oath or affirmation to support the constitution of the United States. C. U. S. Art. 6. L. U. S. 1 Cong. c. 1, and no person shall have power to act in any office, legislative, executive or judiciary in the commonwealth of Virginia, before he gives assurance of fidelity to the same, in the manner prescribed by the act of 1794, c. 57. L. V. And severe penalties are by law denounced against judges, justices, attornies, and clerks of courts and others, for acting in their several offices without first taking the oaths prescribed by law. See L. V. Edi. 1794, c. 63, 64, 65, 66, 67, 70, 71, &c.

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 subjected 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.

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 v. So too, in the old Gothic constitution, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quae sancta habebantur,.... arces et aula regis,.... denique locus quilibet praesente aut adventante rege u. And at present, with us, by the statute 33 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.

But striking in the king's superior courts of justice, in Westminster-hall, or at the assises, 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 conquestw, striking in the king's courts of justice, or drawing a sword therein, was a capital felony: and our modern law retains so much of the antient severity as only to exchange the 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 punish-

t 1 See page 55. v 3 Inst. 140. LL. Alured, cap. 7 & 34

u Stiernh, de jure Goth. l 3. c 3.

w LL Inae. c. 6. LL. Canut. c. 56. LL Alured. c. 7.

able 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.

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 likeb.

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 suing him, a counsellor 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 duty6: which offences, when they proceeded farther than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods d 11. x Staund. P. C. 38. 3 Inst. 140, 141. y 1 Hawk. P. C. 57. z Cro. Car. 373. a Cro. Car. 503. b 1 Hawk. P. C. 58. c 3 Inst. 141, 142. d Stiernh. de jure Goth. l. 3, c. 3.

11. No man, great or small, of what condition soever he be, except the ministers of justice in executing the precepts of the courts of justice, or in executing their office, and such as be in their company assisting them, shall be so hardy to come before the justices of any court or other of their ministers of justice, doing their office with force and arms, on pain, to forfeit their armour to the commonwealth

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.... 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 principall2. And at this day it is agreed, that he is guilty of a high misprision e, and liable to be fined and imprisonedf 13.

e See Bar. 212. 27 Ass. pl. 44, Sec. 4, fol. 138. f 1 Hawk, P. C. 59.

and their bodies to prison at the pleasure of the court. L. V. 1794, c. 21, which is nearly a transcript from the statute, 2 Edw. 3. c. 3, upon which the student may consult Sir Edward Coke's commentary 31 Inst. 160.

12. That part of the oath of a grand-jury-man which obliged him to secrecy hath been abolished in the commonwealth of Virginia; whether for the better, or the worse, experience must determine. See L. V. 1794, c. 73.

13. And here, perhaps, the notes inserted under the heads of contempts against the king's prerogative, ante, page 122; and contempts and misprisons against his person and government, page 123; may be more properly introduced, than where they are.

Here also, we may notice the prohibition contained in the act of 7 Cong. c. 13, against purchases or conveyances of lands from any Indian or Indian nation or tribe which are declared void and the offender is punishable by fine not exceeding one thousand dollars, and imprisonment not exceeding one year. As also the offence of purchasing horses from Indians without a special licence, or from any other person, knowing the same to have been brought out of the Indian territory by any person not licenced; the first of these offences is punishable by fine not exceeding one hundred dollars, and by imprisonment not exceeding thirty days, and the latter by fine to the value of the horse. As also the offence of trading with Indians without licence which is also punishable by fine, imprisonment and forfeiture of the goods offered for sale, or found in the offenders possession. L. U. S. 7 Cong. c. 13. By

By the same act it is further provided that persons crossing the Indian boundary and going into their country, contrary to the provisions of that act may be apprehended therein, by the military force of the United States, and conveyed by the nearest safe and convenient route to the civil authority of the United States in some one of the three next adjoining states or districts, to be proceeded against in due course of law. But no person so apprehended shall be detained longer than five days before removal. L. U. S. 7 Cong. c. 13 § 16.

CHAPTER THE TENTH.

OF OFFENCES AGAINST PUBLIC JUSTICE.

THE order of our distribution will next lead us to take into consideration such crimes and misdemesnors as more especially affect the common-wealth, 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 misdemesnors, that more especially affect the common-wealth, may be divided into five species; viz. offences against public justice, against the public peace, against public trade, against the public health, and against the public police or oeconomy: 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 misdemesnors. I shall begin with those that are most penal, and descend gradually to such as are of less malignity.

1. Imbezzling 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 no only in the principal actors, but also in their procurers and abettors. 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. Likewise by statute 21 Jac. I. c. 26, to acknowlege 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. 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 1.

1. The student must recollect that no penal statute of Great-Britain is in force in Virginia. See page 33.

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, 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. 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 custody2.

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,

a 3 Inst. 91.

If any record, or parcel of the same, writ, return, panel process, or warrant of attorney, in any court within this commonwealth be willingly stolen, taken away, withdrawn, or avoided by any clerk, or other person, because whereof any judgment shall be reversed, such stealer, taker away, withdrawer, or avoider, their procurers, counsellors and abettors on conviction shall be adjudged felons. L. V. 1789, c. 16. Edi. 1794, c. 46.

If any clerk shall willingly make any false entry, or rase, alter or change any record in his keeping belonging to his office; he shall be amerced and imprisoned at the discretion of a jury; and moreover be liable to the action of the party grieved. L. V. 1794, c. 70.

If any person shall feloniously steal, take away, alter, falsify, or otherwise avoid any record, writ, process, or other proceedings in any of the courts of the United States, by means whereof any judgment shall be reversed, or avoided; or acknowlege, or procure to be acknowleged in any of the said courts any recognizance, bail, or judgment in the name of any other person not privy or consenting thereto, he shall on conviction be fined not exceeding five thousand dollars, or be imprisoned not exceeding seven years, and whipped, not exceeding thirty-nine stripes. But this shall not extend to any attorney duly admitted for any person against whom such judgment shall be given. L. U. S. 1 Cong. 2 Sess. c. 9. sect. 15. Quere, whether any attorney who neglects to file his warrant of attorney in a suit may not be within the penalty of this act?

2. The statute here mentioned is repealed. L. V. 1794. c. 147. Our laws are silent on this subject.

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 treasonb 3. 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 likec: all of which sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal, by the statutes 8 and 9 Will. 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 or abusing any officer executing or for having executed the same, shall be felons without benefit of clergy 4.

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 is punishable by fine or imprisonmentd. But the officer permitting such escape, either by negligence or connivance, is much more culpable than the prisoner; the natural desire of liberty pleading strong in his behalf, though he ought in strictness of law to sub-b 1 Hawk. P. C. 121.

c Such as White-Friars, and it's environs; the Savoy; and the Mint in Southwark.

d 2 Hawk. P. C. 122.

3. The laws of Virginia being silent on this subject, this offence remains as at the common law, in the state courts, except as to the case of high treason, concerning which there is room for doubt. But the laws of the United States inflict a fine not exceeding three hundred dollars, and imprisonment not exceeding twelve months, for this offence. L. U. S. 1 Cong. 2 Sess. c. 9, §. 22.

4. See the note page 33.

mit 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 5: 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 arrestf. 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 misdemesnor g 6.

e 1 Hal. P. C. 600.

f 1 Hal. P. C. 590. 2 Hawk. P. C. 134.

g 1 Hal. P. C. 588, 9. 2 Hawk. P. C. 134, 5.

5. The keeper of the penitentiary house of this commonwealth, his deputies and assistants shall forfeit the sum of thirty dollars, in case any of the offenders confined therein, shall escape without his, or their knowlege or consent. L. V. 1796, c. 2. Sec. 41. Sessions acts. And any sheriff who shall neglect to remove and safely to deliver a convict at the penitentiary house forfeits one hundred dollars!! Ibid. Sec. 21.

If any private person having any prisoner in his keeping arrested for suspicion of felony, treason, or murder, and the person so arrested escape by negligent keeping before he be brought to jail, the person from whom he escapes shall be liable to fine. L. V. 1794, c. 74. §. 29.

If any offender, sentenced to hard labour in the penitentiary house of this commonwealth, shall escape, he shall on conviction suffer such additional confinement and hard labour, and corporal punishment not extending to life or limb, as the court before which he shall be convicted shall direct. L. V. 1796, c. 2. Sec. 42. Session acts.

6. The offence of voluntary escapes, by consent and connivance of the officer, remains, I presume, as at common law in Virginia. See the act of 1796, c. 2. Sec. 21 and 41.

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 fragentibus 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 punishable as a high misdemesnor 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 7.

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, treason8; and for a misdemesnor, a misdemesnor also. But here likewise, as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished:

h 1 Hal. P. C. 607. j 2 Hawk. P. C. 128.

i Bract. l. 3. c. 9.

7. The act concerning prison breakers. Edi. 1794, c. 173. V. L. is a transcript from the statute here referred to. But if the offender escape from the penitentiary house after conviction, he shall be punished as mentioned under the last head, of Escapes. L. V. 1796, c. 2.

8. This is certainly not the case under the Constitution and laws of the United States as will be shewn presently. And unless the doctrine of constructive treasons should reach the state courts, we may venture to pronounce that it can not be the case under the laws of Virginia, which, it is presumed; limit the offence of treason to those cases, only, which are enumerated in the act. See V. L. 1794, c. 136. But in other respects the offence may be presumed to remain as at common law.

and for the same reason; because perhaps in fact it may turn out that there has been no offence committed k. 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 knowlege 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 misdemesnor, punishable with fine and imprisonment. 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 9. 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 10.

k 1 Hal. P. C. 607. Fost. 344.

l 6 Geo. I. c. 23. (Transportation.) 9 Geo. I. c 22. (Black-act.) 8 Geo. II, c. 20. (Destroying turnpikes, &c.) 19 Geo. II, c. 34. (Smuggling.) 25 Geo. II, c. 37. (Murder.) 27 Geo. II, c. 15. (Black-act.)

9. By the act of 1 Cong. 2 Sess. c. 9. Sec. 5 and 23. The rescue of a body, ordered for dissection, out of the custody of the marshal or his officers, after execution of the offender, is punishable by fine not exceeding one hundred dollars and by imprisonment not exceeding twelve months. And if any person shall by force, set at liberty or rescue any person found guilty of treason, murder, or other capital crime; or rescue any such person going to execution, or during execution, the offender shall suffer death: and if the rescue be made before conviction, or if the person rescued be committed, or convicted of any other offence against the United States, the offender shall be fined not exceeding five hundred dollars, and imprisoned not exceeding a year.

10. See note, page 33.

7. Another capital offence against public justice is the returning from transportation, or being seen at large in G. 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. 1, 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 11.

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 farther 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 12. Wild, still continuing in his old practice, was upon this statute at last convicted and executed m.

9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemesnor and affront to public justice. We have seen in a former chapter n, that this offence, which is only a misdemesnor at common law, by the statutes 3 and 4 W. and M. c.

m See stat. 6 Geo. I, c 23. Sec. 9. n See page 38

11. These statutes were never in force in Virginia. But the act which authorises the transportation of. slaves convicted of capital crimes subject the slave, in case he shall return again to the commonwealth to execution under his former sentence. L. V. 1800, c. 43. Sess. Acts.

12. These statutes were never in force in Virginia.

9, and 5 Ann. 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 Ann. c. 9, and 5 Ann. c. 31, that such receivers may still be prosecuted for a misdemesnor, and punished by fine and imprisonment, though the principal felon be not before taken so as to be prosecuted and convicted l3. 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 misdemesnor 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 misdemesnor 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 princi-

o See also statute 2 Geo. III, c. 28. Sec. 12, for the punishment of receivers of goods stolen by bum-bears, &c. in the Thames.

p Foster. 373.

13. Any person buying or receiving any stolen goods, or horses, knowing the same to he stolen, may be prosecuted as for a misdemeanor, and punished by fine and imprisonment, although the principal felon be not convicted: which shall exempt the offender from being punished as accessory, if the principal be afterwards convicted. L. V. 1794, c. 109. Sec. 4, and c. 101. Sec. 3.

And by the laws of the United States, the buying or receiving stolen goods, knowing them to be stolen, or the receiving, harbouring or concealing any felons, or thieves, knowing them to be so, shall be punished as larceny; viz. by a fine not exceeding fourfold the value of the property stolen, and whipping, not exceeding thirty-nine stripes. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 17.

pal, 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. This is frequently called compounding of felony, and formerly was held to make a man an accessory; but 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 velare vellet, et occulte sine judice compositionem ejus admitterer." 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 15.

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. 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 16. And indeed it is enacted by statute 12 Geo. I. c. 29, that if any

q 1 Hawk. P. C. 125. s 1 Hawk. P. C. 243.

r Stiernh de jure Goth. l. 3. c. 5. t 1 Hawk. P. C. 244

14. These statutes were never in force in Virginia. See note page 33.

15. This statute was never in force in Virginia, and our laws are silent upon the subject of this offence.

16. In case of mal-practice, by any counsel or attorney, under which term barretry may be presumed to be comprehended, the licence of the counsel or attorney so offending may be suspended, or altogether vacated, as the court may judge proper. L. V. 1794, c. 71.

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 suing 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 injured17.

12. Maintenance is an offence, that bears a near relation to the former; being an officious intermeddling in a suit that no 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 he statute 32 Hen. VIII. c. 9, a forfeiture of ten pounds 18.

u Hawk. P. C. 249. x Ff. 48, 10, 20.

w Dr. & St. 203.

y 1 Hawk P. C. 255.

17. These statutes are not in force in Virginia, see note, p. 33.

18. This statute is repealed in Virginia, see note, p. 33. The maintaining a slave in the prosecution of any suit for the recovery of his freedom, if the claim of freedom be not established, subjects the maintainer to the penalty of one hundred dollars, to the owner of the

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 purtire, 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 expence 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 suing: 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. 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 infamy19. 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 purchasor and vendor shall each forfeit the value of such land to the king and the prosecutor 20. These offences relate chiefly to the commencement of civil suits: but,

z 1 Hawk. P. C 257 b Ff 48, 7, 6.

a Stat. of Conspirat. 33 Edw. I.

slave, or person suing for the same, to be recovered by action of debt or information, and moreover to the action of the party grieved, for his damages. V. L. 1795, c. 11.

19. Champerty is punishable in Virginia by imprisonment and amercement, at the discretion of the jury. L. V. 1794, c. 97.

20. L. V. 1794, c. 30. Accordant; being nearly a transcript from the statute.

14. The compounding of informations upon penal statutes, are an offence of an equivalent nature in criminal causes; and are, besides, an additional misdemesnor 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 for ever disabled to sue on any popular or penal statute 21.

15. A conspiracy also to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a farther abuse and perversion of public justice; 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 rased, 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 disuse become obsolete; it not having been

c See Vol. III. page 196. e 1 Hawk. P. C. 193.

d Bro. Abr. t. Conspiracy, 28.

21. If the prosecutor of an action or information for the recovery of a penalty not wholly appropriated to the use of the prosecutor, shall compound with the offender, or direct such suit or information to be discontinued, unless it be by leave of the court where the same is brought, he shall be liable for so much of the penalty to the commonwealth, or any other, as they would have been entitled to if the defendant had been convicted. L. V. 1794, c. 26.

pronounced for some ages: but instead thereof the delinquents are usually sentenced to imprisonment, fine, and pillory22. 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 23.

16. The next offence against public justice is when the suit is past it's 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 24. 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 frequently upon every petty occasion: since it is more than possible, that by such idle oaths a man may frequently in foro conscientiae incur

f 3 Inst. 164.

22. Conspirators are punishable by imprisonment and amercement at the discretion of a jury. L. V. 1794, c. 22.

23. The laws of Virginia are silent as to this offence. The statute was never in force here.

24. There are many cases in which a voluntary affidavit made, where there is in strictness neither civil suit nor criminal prosecution depending, may amount to perjury; examples of which may be found in the revenue laws generally; as also, in the acts of 1794, c. 17. Sec. 10, and c. 66. Sec. 50. V. L.

the guilt, arid 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; not upon surprize, or the like: it also must be in some point material to the question in dispute; 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 take such a false oath, as constitutes perjury in the principal. 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. 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 there 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

g 3 Inst. 163.

h Montesq. Sp. L. b. 29. c. 11.

* A man may be indicted for perjury in swearing that he believes a fact to be true, which he must know to be false. Leach, 270.

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 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, "perjuri poena divina, exitium; humana, dedecus 25."

i Britton, c 5.

k de Leg. 2, 9.

25. Subornation of perjury is punishable, in Virginia, by fine, not exceeding two hundred pounds, and imprisonment, not exceeding one year. And perjury itself is punishable by fine not exceeding one hundred pounds, and imprisonment not exceeding six months.

And the oath of any person offending, in any case of perjury or subornation of perjury, shall not afterwards be received in any court within the commonwealth. L. V. 1794, c. 48 and 141.

By the laws of the United States, any person who may be guilty of perjury, or subornation of perjury in any matter depending in the courts of the United States, shall be imprisoned, not exceeding three years, and fined not exceeding eight hundred dollars, and be thereafter incapable of giving testimony in any of the courts of the United States, until the judgment be reversed. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 18.

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. 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, orders 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 heinous an offence, that the chief justice Thorp was hanged for it in the reign of Edward 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 for ever. And some notable examples have been made in parliament of persons in the highest stations, and otherwise very eminent and able, but contaminated with this sordid vice 26.

l 1 Hawk. P. C. 168. n de Leg. l. 12. p 3 Inst. 117.

m Ff. 48, 11, 6.

o Pott. Antiq. b. 1. c. 23.

q 3 Inst. 146.

26. Bribery is punishable in Virginia by the payment of treble the value received to the party grieved; and by fine, imprisonment

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.

r 1 Hawk. P. C. 259.

and forfeiture of office. Bribery in order to be elected a member of the state legislature is punishable by expulsion, and disability for three years. If the bribe be given by any candidate for congress, or by any person in his behalf, the penalty is fifteen hundred dollars, to be recovered by action of debt, to the use of the prosecutor. L. V. Edi. 1794, c. 59. 1798, c. 30. The offence of bribery, as noticed in the laws of the United States, is confined to the case of a bribe, offered to, or received by a judge. The punishment, both of the giver, and receiver, is fine and imprisonment at the discretion of the court, and perpetual disqualification to hold any office of honor, trust or profit, under the United States. L. U. S. 1 Cong. 2 Sess. c. 9. §. 21.

Some years ago a prosecution was instituted against a person for writing a letter containing the offer of a bribe to Tench Coxe, then an officer in the treasury-department of the United States. The defendant was convicted upon the indictment in the circuit court of the U. S. for Pennsylvania, before judge Chase, one of the judges of the supreme court, and judge Peters, the judge of the district. The indictment was founded upon the common law. Mr. Dallas, in behalf of the defendant made a motion in arrest of judgment upon the ground that the courts of the United States have not jurisdiction in case of an offence at common law. Judge Chase expressed himself clearly and pointedly of that opinion. Judge Peters held the opposite opinion. The court being divided the judgment was not arrested; and the defendant was fined. See Dallas's reports, Vol. II. page 394.

Any person offering to bribe an inspector of tobacco for any thing to be done by him by virtue of his office is liable to a penalty of sixty dollars; and any inspector receiving a bribe, is liable to a fine of three hundred dollars, and shall be disabled from holding his office. L. V. 1794, c 135. §. 30.

27. Every embracer who shall procure any juror to take gain or profit, shall be punished by fine not exceeding two hundred pounds, and imprisonment pot exceeding one year; and the juror convicted ,

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.

20. Another offence of the same species is the negligence of public officers, entrusted with the administration of justice, as sheriffs, coronors, 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 28.... Also the omitting to apprehend persons, offering stolen iron, lead, and other metals to sale, is a misdemesnor, and punishable by a stated fine, or imprisonment, in pursuance of the statute 29 Geo. II. c. 30 29.

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, (cither consequential or immediate) fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed30.

s See Vol. III. page 402, 403.

t 1 Hawk. P. C. 168.

of taking the same shall pay ten times as much as he shall have taken, and be incapacitated from being a juror. L. V. Edi. 1794, c. 48 and 73.

28. This, as a public offence, remains as at common law in Virginia.

29. This statute was never in force in Virginia.

30. See the note upon the subject of such misprisions as are denominated contempts, or high misdemeanors, ante, p. 121, also C. U. S. Art. 2. §. 4. Art. 1. §. 3, and C. V. Art. 16, 17.

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 31.

u 1 Hawk. P. C. 170.

31. Extortion is punishable in Virginia by the repayment of treble the value received, to the party: and by fine, imprisonment and forfeiture of office. L. V. Edi. 1794, c. 59.

CHAPTER THE ELEVENTH

OF OFFENCES AGAINST THE PUBLIC PEACE.

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. These 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 twelve 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, re-enacted, 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 nature 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 bene-

a Vol. I, p. 118, 268, 350.

fit of 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, which was like 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 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 1 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. And, farther, 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 hindrance, 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 person, 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 1.

2. By statute 1 Hen. VII. c. 7, unlawful hunting in any legal forest, park, or warren, not being the king's property, by

1. These statutes are not in force in Virginia. See Note, p. 33.

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 inclosed forest or place where deer are usually kept, or in any warren for hares or conies, or in any high road, open heath, common, or down, by day or night, with faces blackened 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. 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 2.

3. Also by the same statute 9 Geo. 1. c. 22, amended by statute 27 Geo. II. c. 15, knowingly to send any letter without a name, or with a fictitious 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, outhouses, barns, or ricks, is made felony without benefit of clergy. This offence was formerly high treason by the statute 8 Hen. V. c. 6 3.

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

2. These statutes are not in force in Virginia; but fire-hunting, or the killing of wild deer by means of large fires made in the woods, so as to encompass the deer by a ring of fire, (a practice formerly much used among hunters) subjects every person present, if the fire be made on patented lands, to a fine of four dollars. L. V. 1794, c. 113. See the Note, page 33.

3. Our laws are silent as to this offence. See Note, page 33.

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 pull down or otherwise destroy any turnpike-gate, or fence, toll-house, or 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 4. The remaining offences against the public peace are merely misdemesnors, 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 punish.

b 1 Hawk. P.C. 134. d Ibid. 137.

c Ibid. 136.

4. These statutes are not in force in Virginia. See Note, page 33. But the felling a tree into a public road or stream of water, over which there is a public bridge, if not removed within forty-eight hours: or killing a tree within fifty feet of a public road, or destroying or defacing any stone, or sign-post erected for the direction of travellers, subjects the offender, (his father, or master, if a child, an apprentice, or a slave) to a fine of ten pounds. L. V. Edi. 1794, c. 19.

ment 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 ensuede. Another 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 like5. 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 and 6 Edw. VI, c. 4, that if any person shall, by words only, quarrel, chide, or brawl, in a church or church-yard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiae; and, if a clerk in orders, from the ministration of his office during pleasure. And, if any person in such church or church-yard 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 6. Two persons may be guilty of an affray: but,

e 1 Hawk. P. C. 138.

5. See page 126, note 11. Also; by the same act, no man shall go or ride, armed, by night, or by day, in fairs or markets, or in other places, in terror of the country, upon pain of being arrested and committed to prison by any justice on his own view, or proof by others; there to abide for so long time, as a jury, to be sworn for that purpose by the said justice, shall direct, not exceeding one month, and shall forfeit his armour to the commonwealth. L. V. 1794, c. 21.

6. See note page 33. But any person disturbing any religious congregation, may be put under restraint by any justice being present; and moreover bound to his good behaviour, and imprisoned and amerced at the discretion of a jury. L. V. 1794, c. 138.

6. Riots, routs, and unlawful assemblies, must have three persons at least to constitute them7. An unlawful assembly is when three, or more, do assemble themselves together to do an unlawful act, as to pull down inclosures, to destroy a warren or the game therein; and part without doing it, or making any motion towards it f. 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. 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 8; but, from the number of three to eleven, is by fine and imprisonment only 9. The same is the

f 3 Inst. 176. h 3 Inst. 176.

g Bro. Abr. t. Riot. 4, 5.

7. Riots, routs, unlawful assemblies, trespasses, and seditious speeches by slaves, shall be punished with stripes, at the discretion of a justice of the peace. The assembling of five, or more negroes, at any place (except their master's own plantation, or at a mill in the day time, and not on a Sunday; or at church on a Sunday, or other day of public worship) without leave in writing from their owner or overseer, seems to constitute an unlawful meeting of slaves; and any white person present thereat, shall forfeit three dollars, and on failure of present payment shall receive twenty lashes. L. V. 1794, c. 103.

Any justice of the peace knowing of such unlawful assembly, and failing to issue his warrant to apprehend the persons, is liable to a fine of eight dollars, and every sheriff, serjeant of a corporation, or constable neglecting his duty in suppressing such meeting, to a fine of four dollars for every failure. L. V. 1794, c. 103. Sec. 15.

8. The statutes here alluded to, are not in force in Virginia. See note p. 143 and 33.

9. L. V. Edi. 1794, c. 28, imposes no other punishment in any case of a riot, rout or unlawful assembly, (not amounting to an actual levying war against the state) but fine and imprisonment, at the discretion of a jury.

case in riots and routs by the common law; to which the pillory in very enormous cases has been sometimes superadded i. 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 10. 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 inclosures, 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 king11.

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 assises or quarter-sessions; and, in London, by the lord mayor, aldermen, and common council k: and that

i 1 Hawk, P. C 159.

j 1 Hal P.C. 495. 1 Hawk. P. C 161.

k This may be one reason (among others) why the corporation of London has, since the restoration, usually taken the lead in petitions to parliament for the alteration of any established law.

10. L. V. Edi. 1794, c. 28. Accordant.

11. On this subject; see Appendix to this volume, Note B.

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 imprisonment12.

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 volume 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, upon 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 indict-.

l See Vol. III. p 174, &c. m 1 Hawk. P. C. 141.

12. Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendments to C.U. S. Art. 3.

ment at the general sessions. But this provision does not extend to such as endeavour to maintain possession by force, where they themselves, or their ancestors, have been in the peaceable enjoyment of the lands and tenements, for three years immediately preceding n 13.

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 14.

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 15.

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

n Holding over by force, where the tenant's title was under a lease, now

expired, is said to be a forcible detainer. (Cro. Jac. 199.)

o Pott. Antiq. b. 1. c. 26. p 2 Inst. 226. 3 Inst. 198.

13. Our act, V. L. Edi. 1794, c. 87, is nearly a transcript from these statutes.

14. L. V. 1794, c. 21. Accordant. This offence was noted before, page 146, under the head of affrays.

15. These statutes are not in force in Virginia. See note, p. 33. Spreading false reports, tending to the trouble of the country, if maliciously published or invented, may be punished by fine not exceeding forty dollars, and the offender may be bound to his good behaviour. L. V. Edi. 1794, c. 112.

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 16.

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. 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 Ann. c. 14, shall forfeit all his goods to the crown, and suffer two years imprisonment 17.

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,

q "Habent legibus sanctum, si quis quid de republica a finitimis rumore aut fama acceperit, uti ad magistratum deferat, neve cum alio communicet; quod saepe homines temerarios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consilium capere, cognitum est." Caes. de Bell. Gall. Lib. 6. cap. 19.

r 1 Hawk. P.C. 135, 138

16. No longer an offence in Virginia. See Note, page 33.

17. If any person shall assault, and beat, or challenge, or provoke any other person to fight, upon account of money or other thing won at gaming, and be thereof convicted, he shall forfeit thirty dolis. to the party grieved, and moreover be liable to his action at the common law. L. V. Edi. 1794, c. 96. The offence of sending, or carry ing a challenge to fight, on any other occasion, remains, I presume as at the common law.

signs, or pictures18, 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 ss: and therefore the sending an abusive private 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 t. For the same reason it is immaterial with respect to the essence of a libel, whether the matter of it be true or false u; since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate it's guilt, and enhance it's punishment19. 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 offence it may be against the public peace: and therefore, upon a civil action, the truth of the accusation may be

s 1 Hawk P C. 193. ss Moor. 813.

t 2 Brownl. 151. 12 Rep. 35, Hob. 215. Poph. 139. 1 Hawk. P. C,

u Moor, 627. 5 Rep. 125. 11 Mod. 99. w See Vol. III, p. 125.

18. It is much doubted whether there ever was a prosecution for a libel by pictures. Barrington on the Statutes, p. 85.

19. The general rules laid down by the court of Star Chamber, in Pickering's Case, 5 Co. 125, (from whence the doctrines contained in the text are borrowed) are either extrajudicial, or not maintained, one of which Lord Coke himself contradicted on another occasion. Barrington on the Statutes, p. 88. The same writer observes, that, the reason of the questionable doctrines contained in that case arises from every one of those rules being borrowed from the civil law.... Lord Coke, who was no great civil lawyer, has, therefore, entitled the case, 'DE LIBELLIS FAMOSIS;' which is the title of the chapter in the Roman law; and what severity must we not expect from a country, in which by the twelve tables, in the time of the Decemvirs, a libeller was punished with death?" Ibid. 84. When we consider the source from whence these doctrines have been brought to us, the reasonableness of them ought to be examined before we yield our full assent to all of them.

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.

The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in it's discretion shall inflict; regarding the quantity of the offence, and the quality of the offender x. 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 not in freedom from censure for criminal matter when published. Every freemen has an undoubted right to lay what sentiments he pleases before

x 1 Hawk. P. C. 196.

y .................... Quinetian lex

Poenaque lata, malo quae nollet carmine quenquam

Describi: ......... vertere modum formidine fustis. Hor. ad. Aug. 152.

z Cod. 9, 36.

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 Jaw 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 fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for the restraining the just free-

a The art of printing, soon after it's introduction, was looked upon (at well in England as in other countries) as merely a matter of state, and subject to the coercion of the crown. It was, therefore, regulated with us by the king's proclamations, prohibitions, charters of privilege and of licence, and finally by the decrees of the court of star-chamber; which limited the number of printers, and of presses which each should employ, and prohibited new publications unless previously approved by proper licencers. On the demolition of this odious jurisdiction in 1641, the long parliament of Charles I, after their rupture with that prince, assumed the same powers, as the star-chamber exercised, with respect to the licensing of books; and in 1643, 1647, 1649, and 1652, (Scobel, i. 44, 134, ii. 88, 230) issued their ordinances for that purpose, founded principally on the star-chamber decree of 1637. In 1662, was passed the statute 13 & 14 Car. II, c. 33, which (with some few alterations) was copied from the parliamentary ordinances. This act expired in 1679, but was revived by statute

1 Jac. II, c. 17, and continued till 1693. It was then continued for two yean longer, by statute 4 W. & M. c. 24, but though frequent attempts were made by the government to revive it, in the subsequent part of that reign (Com. Journ.

11 Feb. 1694. 26 Nov. 1695. 22 Oct. 1696. 9 Feb. 1697. 31 Jan. 1698), yet the parliament resisted it so strongly, that it finally expired, and the press bename properly free, in 1694; and has ever since so continued.

dom of the press, "that it was necessary to prevent the daily abuse of it," will entirely lose it's force, when it is shewn (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 controul of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press20.

20. See Note 9, page 123.

"The freedom of the press is one of the great bulwarks of liberty, and cannot be restrained but by despotic governments." Bill of Rights, Art. 12.

"Among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified, by any, authority of the United States".... Preamble to the ratification of the constitution of the United States, by the convention of the state of Virginia, June 27, 1788.

"Congress shall make no law abridging the freedom of speech, or of the press." Amendments to C. U. S. Art. 3.

To which, I shall subjoin, the following commentary, by Messrs. Marshal, Pinkney, and Gerry, when in France in the character of envoys from the United States.

"The genius of the constitution cannot be over-ruled by those who administer the government. Among the principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the government should contemplate with awful reverence, and approach only with the most cautious circumspection, there is none of which the importance is more deeply impressed on the public mind than the liberty of the press." Letter to the Minister of foreign relations. See also, Appendix to Vol. I. part II. Note G.

CHAPTER THE TWELFTH.

OF OFFENCES AGAINST PUBLIC TRADE.

OFFENCES 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 it's being usually carried on in the night, which is the offence of transporting wool or sheep out of this kingdom, to the detriment of it's 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, and 7 & 8 W. III, c, 28, make the exportation of wool, sheep, or fuller's 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, (amended and farther 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.

a Mir. c. 1, Sec. 3,

1. These statutes are not in force in Virginia.... See Note, page 33.

2. Smuggling, or the offence of importing goods without paying the duties imposed thereon by the laws of the customs and excise, 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 seisure of the goods for clandestine smuggling; and affix the guilt of felony, with transportation for seven years, upon more open, daring, and avowed practices: but the last of them, 19 Geo. II, c. 34, is for this 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 seisure, 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 two cautious in inflicting the penalty of death c 2.

b Stat. 26 Geo. I, c. 32. 32 Geo. II, c. 18. 4 Geo. III, c. 12. c See Vol. I, p. 317. Beccar. ch. 33.

2. The penalties imposed by the act to regulate the collection of duties on imports, and tonnage, are either a pecuniary fine or forfeiture of the goods, or of the ship, vessel, or boat into which they may be put, from on board the vessel in which they may be imported. L. U. S. 5 Cong. c. 128. Sec. 24 to 30, &c.

3. Another offence against public trade is fraudulent bankruptcy, which was sufficiently spoken of in a former volume d; I shall therefore here 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 imbezzling 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. 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 coinf. 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 off3. 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

d See Vol II, page 481, 482. f Beccar. ch. 34.

e Stat. 5 Geo. II. c. 30.

3. Every bankrupt, who shall be convicted of any wilful default or omission in any of the matters required of him, by the eighteenth section of the act for establishing an uniform system of bankruptcy, shall be adjudged a fraudulent bankrupt, and shall suffer imprisonment, not less than twelve months, and not exceeding ten years, and shall not, at any time after, be entitled to the benefit of that act.

And any bankrupt refusing to be examined, or to answer fully, or to subscribe his examination, may be committed by the commissioners to close confinement, till he shall conform himself: and if he shall submit to be examined, and upon his examination it shall appear, that he hath committed wilful or corrupt perjury, he may be indicted therefor; and, upon conviction, shall suffer imprisonment for a term not less than two, nor more than ten years. L. U. S. 6 Cong. c. 19. §. 18, 21.

Every person, knowingly, receiving or concealing a bankrupt, or who shall assist him in absconding or concealing himself, may be imprisoned not exceeding twelve months, or fined, not exceeding one thousand dollars. Ibid. §. 23.

under 100l. neglects or refuses on demand to discover and deliver up his effects for the benefit of his creditors 4. And these are the only felonious offences against public trade; the residue being mere misdemesnors: 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 praemunire that transact any contracts for more, and the securities themselves shall be void. 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 Ann. 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 *. Also, if any scrivener or

g See Vol. II. page 455, &c.

* One half of the penalty is given by the statute to the prosecutor, the other half to the king. It is remarkable, that such was the prejudice in antient times against lending money upon interest, that the first statute, the 37 Hen. VIII. c. 9, by which it was legalized, was afterwards repealed by 5 and 6 Edw. VI. c. 20, by which all interest was prohibited, the money lent and the interest were forfeited, and the offender was subject to fine and imprisonment.... A learned author has displayed much ingenuity in arguing against the policy of the limits of interest upon a contract for the loan of money, but Cato was of a different opinion. Cum ille. qui quęsierat, dixisset, Quid foenerari ? Tum Cato. Quid hominem, inquit, occidere? Cic. Off.

It is not necessary, that money should be actually advanced to constitute the offence of usury, but any contrivance or pretence whatever to gain more than legal interest, where it is the intent of the parties to contract for a loan, will be usury; as where a person applies to a tradesman to lend him money, who, instead of cash, furnishes him with goods, to be paid for at a future day, but at such an exorbitant price, as to secure to himself more than legal interest upon the

4. This statute was never in force in Virginia.

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 misdemesnor, and punishable with fine and imprisonment: as is also the offence of procuring

amount of their intrinsic value, this is an usurious contract. The question of usury, or whether a contract is a colour and pretence for an usurious loan, or is a fair and honest transaction, must, under all it's circumstances, be determined by a jury, subject to the correction of the court by a new trial. Cowp. 112, 770. Doug. 708. 3 T. R. 531.

It is now clearly settled, that bankers and other persons discounting bills, may not only take 5l. per cent. for interest, but also a reasonable sum besides, for their trouble and risk in remitting cash, and for other incidental expences. 3 T. R. 52. But still whether such a charge is reasonable or usurious, must be decided by a jury, assisted by the direction of the judge. If a contract is entered into, to pay more than legal interest, though all securities are immediately void, yet the penalty is not incurred till more than legal interest is actually paid. Doug. 223.

But in order to avoid a security, it must be shewn that the agreement was in it's origin illegal and usurious: it will not be usury, if more than legal interest is afterwards paid, if not originally agreed for. 3 Anst. 940.

If a banker deducts the discount of 5l per cent. upon a bill, and, instead of paying the remainder in cash, gives a draft for it even at a short date, this has been held to be usury; for he not only gains 5 per cent. but also the further benefit of the money till that draft is paid. If a person discounts a bill, and takes more than legal interest, he cannot be prosecuted for the penalty till that bill is paid in money, or money's worth, or receives so much of it as with the discount will amount to more than legal interest for the money he advanced. If, when the bill is due, he receives only another bill in payment, the penalty cannot be incurred till the second bill is discharged. Maddock v. Hammett and others. 7 T. R. 184.

The borrower of the money is a competent witness to prove the usury in a penal action against the lender, though he has not repaid the money; for the borrower could not give in evidence the verdict in that action, if an action were brought against him by the lender. Smith v. Prager, 7 T. R. 60.

But in criminal prosecutions for forgery, no one can prove a bill of exchange, bond, or other instrument a forgery, which, if valid, he would be liable to pay, unless he is released by the person to whom he is so apparently bound and answerable. Doctor Dodd's case. Leach. 141. And this still continues the practice in criminal courts

Sec more upon usury, 1 vol. p. 463.... Christian.

or soliciting any infant to grant any life-annuity; or to promise, or otherwise engage, to ratify it when he comes of age5.

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 assise of bread, or the rules laid down by law, and particularly by statutes 31 Geo. II. c. 29, 3 Geo. III. c. 11, and 13 Geo. III. c. 62, for ascertaining it's 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 6. The punishment of bakers, breaking the assise, 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 dungcart 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 cerevisiam faciens, in cathedra ponebatur stercoris j.''

h See Vol. I. page 274. i 3 Inst. 219. j Seld. Tit. of Hon. b. 2, c. 5. Sec. 3.

5. The rate of interest, for near half a century past, was limited to five per cent. per annum, but the act of 1796, c. 16, allows six per cent. to he taken after the first day of May, 1797. The act 1794, c. 31, avoids all bonds, contracts, conveyances, or assurances for payrnent of the money, or goods lent at usury; and the lender forfeits double of the value thereof. And any broker taking more than five shillings in the 100l. for brokerage, or one shilling for a bond, shall forfeit twenty pounds. V. L. 1794, c. 31.

6. The act of 1734, c. 1, imposes a penalty of twenty shillings upon any person who shall sell or buy, or keep any weight or measure not conformable to the English standard. This act is continued in force until the congress of the United States shall have made provision on the subject, pursuant to the first article of the constitution. L. V. 1794, c, 140.

But how the general punishment for all frauds of 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. 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 7.

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 and 6 Edw. VI. c. 14, to be the buying or contracting for any merchandize 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

k 1 Hawk. P. C. 188.

l 1 Hawk. P. C. 234.

7. In Virginia, the penalty is imprisonment, not exceeding one year, and the pillory. L. V. 1794, c. 45.

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. And so the total engrossing of any other commodity, with intent to sell it at an unreasonable price, 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 misdemesnors, discretionary fine and imprisonmentn. Among the Romans, these offences and other mal-practices to raise the price of provisions, were punished by a pecuniary mulct. "Poena viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coierit quo annona carior fiat o 8."

9. Monopolies are much the same offence in other branches of trade, that engrossing is in provisions: being a licence 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 begin-

m Cro. Car. 232. o Ff. 48, 12, 2. q 3 Inst. 181.

n 1 Hawk. P. C. 235. p 1 Hawk. P. C. 231.

8. During the revolutionary war, these offences of forestalling, regratting, and engrossing, were punishable by imprisonment for the space of one month, and forfeiture of the value of the thing bought or sold for the first offence. These penalties were double for the second offence; and for the third offence, the pillory, and imprisonment not exceeding three months, and forfeiture of treble the value of the things bought or sold. L. V. Oct. Sess. 1777. Edi. 1785, page 65.

I am at a loss to account for the grounds upon which this act seems to have been supposed to be repealed. I have supposed it to be from the following circumstances: The act above mentioned was amended by one more rigorous, for one year. Oct. 1778, c. 42. After it expired, it was revived, and continued for one year, by the act of Oct. 1779, c. 20. It is not improbable, that from these circumstances the first act, to which there was no limitation, was supposed to be repealed, or to have expired with the last.

ning of the reign of king James the first: but were in great measure remedied by statute 21 Jac. I. c. 3, 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 extrajudicial order, other than of the court wherein it is brought, they incur the penalties of praemunire. Combinations also among victuallers or artificers, to raise the price of provisions, or any commodities, or the rate of labour, are in many cases severely punished by particular statutes; and, in general, by statute 2 and 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 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 merchandize, provisions, or workmanship, were prohibited, upon pain of forfeiture of goods and perpetual banishment 9.

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 10.

11. Lastly, to prevent the destruction of our home manufactures, by transporting and seducing our artists to settle abroad,

r Cod. 4, 59, 1. s See Vol. I, page 427.

9. Our state bill of rights, Art. 4, seems to condemn monopolies. The constitution of the United States permits them, for a limited time, in favour of authors and inventors. C. U. S. Art. 1. Sect. 8.

10. This statute is repealed. See note page 33.

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 embassador where they reside, shall be deemed aliens, and forfeit all their lands 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 knowlege 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 for ever 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 assises forfeit such tools and also 200l 11.

t Stat. 15. Geo. III, c. 5.

11. These statutes are not in force in Virginia. See page 33, note: Under this head may be mentioned.

1. The law of the United States for prohibiting the carrying on the slave trade from the United Slates to any foreign country. L. U. S. 3 Cong. c. 11. As also, the act in addition thereto, 6 Cong. c. 51. The penalties of which are forfeiture of the ship, or vessel, and pecuniary penalties on the several offenders, whether owner, or seaman, on board.

2. To this head we may likewise refer the several laws of the state for regulating inspections of tobacco, flour, beef, pork, tar, pitch, turpentine, hemp, lumber, Indian meal, fish, &c. The penalties of which are in general pecuniary. See L. V. 1794, c. 54. Hemp, c. 117, and c. 155. Flour and bread; c. 124. Lumber c. 128. Beef, pork, tar &c. c. 135, and 154. Tobacco, 1795, c. 18, and 20. Indianmeal and fish.

Note. If any inspector of tobacco shall issue double notes for the same tobacco; or any note for tobacco not received; or shall re-issue or pass away any note after the delivery of the tobacco, for which such note was granted: every such offence is felony without benefit of clergy. L. V. 1794, c. 135. §. 40, and 1796, c. 12. §. 5. But the punishment is now imprisonment at hard labour in the penitentiary house, for a period not less than one, nor more than ten years. L. V. 1799, c. 58. Sess. Acts.

CHAPTER THE THIRTEENTH.

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

THE 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 inforced, by the watchman appointed on such melancholy occasions, to obey such necessary command: and, if any hurt ensue by such inforcement, the watchmen are thereby indemnified. And farther, 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. 6, (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 mas-

ters of ships coming from infected places and disobeying the directions there given, or 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. 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. 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. These are all the offences which may properly be said to respect the public health 2.

1. The manner of performing quarantine, by ships, in Virginia, and the duty of the officers and others employed in seeing the quarantine performed; as also the duty of pilots, in respect to vessels coming from infected places, are prescribed by several statutes. And all officers of the revenue, and the masters, crews of revenue cutters, and military officers commanding in any fort or station on the sea-coast, are required to observe the same, and to aid in the execution thereof. L. V. Edi. 1794, c. 129, and 159. L. U. S. 5 Cong, c. 118. The penalties fixed by these acts are pecuniary, but considerable.

Any person coming into this commonwealth by land, from any place infected with a contagious disease, may be compelled to perform quarantine. L. V. Edi. 1794, c. 159. No specific fine or penalty is imposed by this act; the offence therefore must be punished by indictment.

2. A butcher selling the flesh of any animal diseased; or a baker, brewer, distiller or other person selling unwholsome bread or drink, shall be fined, at the discretion of a jury, for the first offence; for the second he shall suffer judgment of the pillory; and for the third shall be adjudged to hard labour six months, in the public works. L. V. 1794, c. 23.

V. The last species of offences which especially affect the commonwealth are those against the public police and oeconomy. By the public police and oeconomy 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 comprizes 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 misdemesnors 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 licence from the archbishop of Canterbury; and, 2. To solemnize marriage in such church or chapel without due publication of banns, or licence obtained from a proper authority; do both of them not only render the marriage

To this class of offences against the public health, we may refer the wilful importation of the small pox, or of any variolous matter, with a purpose to inoculate; the penalty for which is three thousand dollars: and any person who shall inoculate, or procure inoculation to be performed, without a licence or consent, as prescribed by the act, shall forfeit three hundred dollars for every offence; and any person wilfully endeavouring to spread the small pox without inoculation, or by inoculation, in any other manner than as the act prescribes, shall forfeit fifteen hundred dollars, and suffer six months imprisonment, L. V. Edi. 1794, c. 106.

As also; the preparing, exhibiting, or administering any medicine, by a slave, without the mutual consent of the owner of the slave, and the master of the family, where the medicine may be administered, which is felony in the slave, without benefit of clergy. "Provided always," says the law, "that if it shall appear to the court, before whom such slave shall be hired, that the medicine was not prepared, exhibited, or administered with an ill intent, nor attended with any bad consequences, such slave shall be acquitted." L. V. 1794. c. 103.

void, but subject the person solemnizing it to felony, punished by transportation, for fourteen years: as, by three former statutesa 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 licence; 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 3.

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:

a 6 and 7 W. III, c. 6. 7 and 8 W. III. c. 35. 10 Ann.c, 19. Sec. 176.

b 3 Inst. 88. Bigamy, according to the canonists, consisted in marrying two virgins successively, one after the death of the other, or in once marrying a widow. Such were esteemed incapable of orders, &c.; and by a canon of the council of Lyons, A. D. 1274, held under pope Gregory X, were omni privilegio clericali nudati et coercioni fori secularis addicti. (6 Decretal. l. 12.) This canon was adopted and explained in England, by statute 4 Edw. I, st. 3, c. 5, and bigamy thereupon became no uncommon counterplea, to the claim of the benefit of clergy. (M. 40 Edw. III. 42. M. 11 Hen. IV. 11, 48. M. 13 Hen. IV. 6. Staunf. P.C. 134.) The cognizance of the plea of bigamy was declared by statute 18 Edw. III. st. 3, c. 2, to belong to the court Christian, like that of bastardy. But by stat. 1 Edw. VI, c. 12. Sec. 15, bigamy was declared to be no longer an impediment to the claim of clergy. See Dal. 21. Dyer 201.

3. If any minister shall celebrate the rites of matrimony, without a licence, or publication of banns, he shall for every offence be imprisoned one whole year, and forfeit fifteen hundred dollars. And if any minister shall go out of the commonwealth and there join in marriage any person belonging to the same, without licence or publication of banns, he shall be liable to the same penalties, as if the marriage had been celebrated within the commonwealth. And if any clerk who shall issue or certify any marriage licence, otherwise than in the manner prescribed by law, shall be subject to the like penalties: and any

and yet the legislature has thought it just to make it felony, by reason of it's 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: but 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. 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 knowlege 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

c de morr Germ. 18. e 1 Hal. P. C. 693.

d Stiernh, de jure Sueon. l. 3. c. 2.

f 3 Inst. 89, Kel. 27. 1 Hal. P. C. 694.

minister, clerk, or reader, granting or issuing a false certificate of the publication of banns, shall be subject to the like penalties, and shall also be liable to be prosecuted and punished as in case of forgery. L. V. 1794, c. 104. §. 1 and 12. Sess. Acts of 1796, c. 28, erroneously numbered, c. 23.

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 he within the reason and penalties of the act 4.

3. A third species of felony against the good order and 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

g 3 Inst. 85.

4. The act of 1788, c. 34, is nearly a transcript from the statute of James the first. See V. L. 1794, c. 104. §. 14. This offence being within the benefit of clergy, is now punishable, by imprisonment at hard labour and solitary confinement in the penitentiary house, not less than six months, nor more than two years. Sess. Acts 1796, c. 2. Sec. 13.

To this head may likewise be referred,

1. Incestuous marriages, or such as are celebrated between persons related to each other within the levitical degrees; such marriages may be annulled by decree of the high court of chancery, and the court may, moreover, punish the parties by fine; and, in its discretion, cause them to give bond with security not to cohabit thereafter. L. V. 1788, c. 32. Edi. 1794, c. 104. Sec. 13.

2. Marriages celebrated between servants, or between free persons and servants, without consent of the servants' master, subject the minister, clerk, or reader, knowingly publishing the banns, or marrying the parties, to a fine of two hundred and fifty dollars for every offence, and the parties to one year's further service, or a fine of twenty dollars, payable to the master. Ibid. c. 104. Sec. 16.

3. Any white man or woman, being free, who shall intermarry with a negroe or mulatto; bond or free, is liable to six months imprisonment, and to a fine of thirty dollars for the use of the parish; and any minister, celebrating marriage between such persons, is liable to a fine of two hundred and fifty dollars, recoverable by action of debt or information, in any court of record, one half to the use of the commonwealth, and the other to the use of the informer. L. V. 1794, c. 104. Sec. 17, 18.

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 licenced to depart by his employer, who in such case shall forfeit ten pounds 5.

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 fifteenth century, and have since spread themselves all over Europe. Munsterh, 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 A. D, 1464) mentions them in 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 the 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, "outlandish people, calling themselves Egyptians, using no craft nor feat

h Cosmogr. l. 3.

i Gloss 193.

k Dufresne. Gloss. l. 200.

5. This statute, if ever in force in Virginia is repealed. Sec Note page 33.

of merchandize, 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 subtilty 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 felonies which they may have committed, they shall not be entitled to a jury de medietate linguae. And afterwards it is enacted by statute 1 and 2 Ph. 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 assises 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 6.

l 1 Hal. P. C. 671.

6. These statutes, if ever in force in Virginia, are repealed. See Note, page 33. But by the act for the preventing the migration of free negroes and mulattoes into this commonwealth, passed in the year 1793, any such person coming into the commonwealth may be apprehended by any citizen, and carried before a justice of the peace, who is thereby authorised to send, or remove him to the state or island from whence he came, at the expence of the importer, if brought hither by water: and, every master of a vessel, or other person bringing any such person into the commonwealth, (except sailors or others employed on board of such vessels, and servants attending any person travelling) shall forfeit one hundred pounds, recoverable by action of debt, or information in any court of record, and the offender may moreover be ruled to give special bail. L. V. 1794, c. 164. Slaves also brought into the commonwealth are to be sent out of it, at the expence of the owner, or importer. Ibid. 1800, c. 70. Sess. Acts.

5. To descend next to offences, whose punishment is short of death. Common nuisances are a species of offences against the public order and economical regimen of the state; being either the doing 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 preceding 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 or 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 reparations7. 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, distreined to repair and amend them, and in some cases fined. And a presentment thereof by a judge of assise, &c. or a justice of the peace, shall be in all respects equivalent to an indictment o. Where there is an house erected, or an inclosure made, upon any part of the king's demesnes, or of an highway, or common street, or public water, or such like public things, it is properly called a purpresture p. 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 of the

m 1 Hawk. P. C. 197. n Vol. III, p. 216.

o Stat, 7 Geo. III, c. 42.

p Co. Litt. 277, from the French pourprit, an inclosure

7. See L. V. 1794, c. 19. Some of the penalties are recoverable by action, and others by warrant from a justice of the peace, or by petition to the county court.

misdemesnor: and particularly the keeping of hogs in any city or market town, is indictable as a public nuisance q. All disorderly inns or ale-homes, gaming-houses, bawdy-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 8. Inns, in particular, being intended for the lodging and receipt of travellers, may be indicted, suppressed, and the innkeepers 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 ss 9. 4. By statute 10 and 11 W. III, c. 17, all lotteries are declared to be public nuisances, and all grants, patents, or licences 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 licence and regulate the keepers of such lottery-offices10. 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 and 10 W. III, c. 7, and therefore is punishable by

q Salk. 460.

s 1 Hawk. P.C. 225.

r 1 Hawk. P. C. 198, 225.

ss Stiernh, de jure Sueon. l. 2. c. 9.

8. Any person whatsoever, suffering billiards, the games of A, B, C, or E, O, or faro-bank, or the like, to be played in his house, or in a house of which he hath the use or possession, shall forfeit one hundred and fifty dollars, recoverable in any court of record, by any person who will sue for the same: tavern keepers suffering any other kind of gaming in their houses, or upon their tenements, forfeit twenty dollars to the informer. L. V. 1794, c. 96, and 107. 1797, c. 2.

9. The keepers of taverns, or (as they are stiled generally in our laws) ordinaries, are required to give bond for making due provision for the accommodation of travellers. See the act for regulating ordinaries, and restraint of tippling houses, at large. L. V. Edi. 1794, c. 107. As also the acts against gaming. Ibid. c. 96 and 1797, c. 2.

10. Private lotteries are prohibited under penalty of forfeiting the whole sum proposed to be raised thereby, or by any raffling. L. V,

1794, c. 96.

fine. 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 11. 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 t: or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour u. 7. Lastly, a common scold, communis rixalrix, (for our law-latin confines it to the feminine gender) is a public nuisance to her neighbourhood. For which offence she may be indictedv; and, if convicted, shall w be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or clicking 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 punishmentx.

6. Idleness in any person whatsoever is also a high offence against the public oeconomy. 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 y 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.

t Kitch. of courts. 20. v 6 Mod. 213. x 3 Inst. 219.

u Ibid. 1 Hawk. P. C 132 w 1 Hawk. P. C. 198, 200. y Valer. Maxim. l. 2. c. 6.

11. These statutes are not in force in Virginia. See note, page 33.

The civil law expelled all sturdy vagrants from the city z: 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 come, ne whether 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 yearsl2. Persons harbouring

z Nov 80. c. 5.

12. Any able bodied man, who, not having wherewithal to maintain himself, shall he found loitering, and shall have a wife, or children without means for their subsistence; and any able bodied man, without a wife or child, who, not having wherewithal to maintain himself, shall wander abroad, or be found loitering without betaking himself to some honest employment, or shall go about begging, shall be deemed and treated as a vagrant. L. V. 1794, c. 102. §. 32.

Every keeper or exhibitor of either of the gaming tables called A B C, or E O, or of a faro-bank, or any other table or bank of the like kind, shall like wise be deemed, and treated as a vagrant. L. V. 1794, c. 96. §. 11.

Vagrants may be apprehended, by warrant from a justice of the peace of the county, or magistrate of the corporation, wherein they may be found; and, in the former case, hired out by the overseers of the poor; and, in the latter, committed to the work-house, if any, in the corporation; or, if not, hired out, by two magistrates; for any term not exceeding two months. L. V. 1794, c. 102. §. 26 and 31.

Persons having no visible estate, profession or calling to support them; but for the most part supporting themselves by gaming, may be bound to their good behaviour for twelve months, and on refusal

vagrants are liable to a fine of forty shillings, and to pay all expenses brought upon the parish thereby: in the same 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 commita*.

7. Under the head of public oeconomy may also be property ranked all sumptuary laws against luxury, and extravagant expenses in dress, diet, and the like; concerning the general uti-

a LL Edw. c. 27. Bracton. l. 3. tr. 2 c 10. Sec. 2.

* [By the statute 23 Geo. III. c. 88, reciting, Whereas divers ill-disposed persons are frequently apprehended, having upon them, implements for house-breaking, or offensive weapons, or are found in or upon houses, warehouses, stables, or outhouses, areas of houses, coach-houses, inclosed yards or gardens belonging to houses, with intent to commit felonies; and although their evil purposes are thereby manifested, the power of his majesty's justices of the peace to demand of them sureties, for their good behaviour hath not been of sufficient effect to prevent them from carrying their evil purposes into execution; it is enacted, that if any person shall be apprehended, having upon him or her any picklock-key, crow, jack, bit, or other implement, with an intent feloniously to break and enter into any dwelling-bouse, warehouse, coach-house, stable, or outhouse; or shall have upon him any pistol, hanger, cutlass, bludgeon, or other offensive weapon, with intent feloniously to assault any person, or shall be found in or upon any dwelling-house, warehouse, coach-house, stable, or out-house, or in any inclosed yard or garden or area belonging to any house, with an intent to steal any goods or chattels, every such person shall be deemed a rogue and vagabond, within the intent and meaning of the statute made in the seventeenth year of his late majesty king Geo. II.] The want of a similar statute in Virginia has on more than one occasion been evinced in the district courts of the commonwealth; particularly at Dumfries, May term, 1793, George Gordon's case.

may be committed to jail 'till they give security for the same; and if, within that time, they shall play or bet at any game, it shall be a forfeiture of their recognizance. Ibid. c. 96.

lity of which to a state, there is much controversy among the political writers. Baron Montesquieu lays it down b, 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 were a multitude of penal laws existing, to restrain excess in apparelc; 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 in 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 13.

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. 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

b Sp. L. b. 7. c. 2 & 4.

c 3 Inst. 199.

13. These statutes are not in force in Virginia. See note p. 33.

unlawful diversions there specified d, unless in the time of Christmas, under pecuniary pains and imprisonment. And the same law, and also the statute 30. Geo. II, c. 24, inflict pecuniary penalties, as well upon the master of any public house wherein servants are permitted to game,as upon the servants themselves who are found to be gaming there 14. But this is not the principal

d Logetting in the fields, slide-thift or shove-groat, cloyish-cayles, half-bowl, and coyting.

14. Any person playing in any ordinary, race-field, or any other public place, at any game, except billards, (which are now also prohibited, altogether, by a subsequent act, 1797, c. 2.) bowls, backgammon, chess, or draughts, is liable to a penalty of twenty dollars for the use of the poor. And any person losing, or winning of another more than twenty dollars, at any game whatsoever, within twenty-four hours, is liable to pay one half the sum which he shall so win or lose, recoverable by information in the county court. Any person cheating at cards, or other games, shall forfeit five times the value won, and be deemed infamous, and suffer corporal punishment, as in case of perjury. Any person assaulting, or challenging, or provoking another to fight, upon account of money won by gaming or betting, is subject to a penalty of thirty dollars; the keepers and exhibitors of A, B, C, or E, O, tables, or faro-banks; or the like, are moreover, liable to be dealt with as vagrants. And gamesters, having no visible estate, may be bound to their good behaviour. Lotteries and raffiings are prohibited by the same act. And the presiding judges, both in the district and inferior courts, are required to give the act in charge to every grand-jury. L. V. 1794, c. 96. See also note page 169.

And, if any persons play at any game contrary to law, in a tavern or in an out-house, booth, arbor, or other place upon the tenement in possession of a tavern-keeper, if he do not endeavour to hinder them, and (if they persist,) give information against them within one month, his licence shall be revoked by the court, and he shall pay twenty dollars to the informer. L. V. 1794, c. 107. §. 9.

And by a subsequent act, money staked, or betted, at any game or exhibited for the purpose of alluring persons to bet against, at any game, may be seised by any magistrate, or any other person authorised by his warrant: billiard tables may likewise be seised, and destroyed, as well as other gaming-tables; and any person whatsoever suffering billiards, or any of the games called. A, B, C. E, O, or farobank, or any other gaming table, or bank, of the like kind, to be played in his house, is subject to a fine of one hundred and fifty dollars. And

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 e describes to have been bewitched with the spirit of play to a most exhorbitant degree. "They adict 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 stript 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 prava pervicacia, ipsi fidem vacant." 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 unsucessful, 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 Ann. 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 incumbrances of lands, made upon the same consideration, shall be and enure to

e de mor. Germ c 24.

any person opposing the seisure of money staked or betted on any game, is liable to a penalty of fifteen hundred dollars: and any person carrying away any part of such money, after the seisure shall be declared, shall be guilty of a misdemeanour. L. V, 1797.

the use of the heir of the mortgagor: that if any person at any one 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 statute farther 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; 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.f, 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 g 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*. By statute 18 Geo. II.

f 12 Geo II, c. 28. 13 Geo II, c. 19. 18 Geo. II, c. 34.

g 10 & 11 W. III, c 17. 9 Ann. c 6, Sec 56 10 Ann. c 26, Sec. 109. 8 Geo. I, c 2, Sec. 36, 37. 9 Geo. I, c. 19, Sec. 4, 5. 6 Geo. II, c. 35, Sec. 29, 30.

* Newmarket and Black Hambleton are excepted, where a race may be run for any sum or stake less than fifty pounds. But though such horse races are lawful, yet it has been determined, that they are games within the statute of 9 Ann. c. 14. and that of consequence wagers above 101. upon a lawful horse

c. 34, the statute 9 Ann. is farther enforced, and some deficiencies supplied: the forfeitures of that act may now be recovered in a court of equity; and, moreover, if any man he convicted upon information or indictment of winning or losing at play or by betting at any 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 are not so deficient, as ourselves and our magistrates in putting those laws in execution15.

race, are illegal. 2 Bl. Rep. 706. A foot race, and race against time, have also been held to be games within the statute of gaming. 2 Wils. 36. So a wager to travel a certain distance within a certain time with a postchaise and a pair of horses, has been considered of the same nature. 6 T. R. 499. A wager for less than 10l. upon an illegal horse-race, is also void and illegal. 4 T. R. 1. Wagers in general, by the common law, were lawful contracts, and all wagers may still be recovered in a court of justice, which are not made upon games, or which are not such as are likely to disturb the public peace, or to encourage immorality, or such as will probably affect the interests, characters, and feelings of persons not parties to the wager, or such as are contrary to sound policy, or the general interests of the community. See 3 T. R. 693, where the legality of wagers is fully discussed.

Where a person had given 1001. upon condition of receiving 300l. if peace was not concluded with France within a certain time, and he afterwards brought his action to recover the 300l. it was held the wager was void, as being inconsistent with general policy, but he was allowed to recover back the 100l. which he had paid, under a count for so much money had and received by the defendant to his use. 7 T. R. 535. So also, a person was permited to recover back his share of a wager against a stakeholder upon a boxing match. 5 T. R. 405. the court not considering the conduct of the plaintiff in these instances so criminal as to deprive him of the benefit of their assistance.... Christian.

15. Most of these statuary prohibitions (except against horse-racing) have been adopted in our acts against gaming; and some additional provisions have been made therein, as may be seen by comparing the acts with the statutes here quoted: the act of 1794, c. 96, in particular, avoids all promises, agreements, notes, bills, bonds, or other compacts, judgments, mortgages or other securities or conveyances whatsoever, where the whole or part of the consideration of such promise &c. shall be for money &c. won or betted at cards, or any other game, or wager; or for money knowingly lent at the time and place of gaming, or betting, to any person gaming or betting &c. and any estate in lands, slaves, or chattels, sold, demised or mort-

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 it's 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 h, (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 of either a free warren, or at least a manor of their own. But the laws, called the game laws, have

h See Vol. II, page 417, &c.

gaged, to satisfy, or secure money lost at play, shall vest in the heirs of the vendor, lessor, or mortgagor, to all intents and purposes, as if such vendor, lessor, or mortgagor, had died intestate. Any person losing more than seven dollars in twenty-four hours may sue the winner, and recover it back by action of debt; 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. See the act at large, L. V. 1794, c. 96, see also the notes p. 169, and 171. And, by the act of 1782, c. 35, some further regulations are made for the preventing and suppressing of gaming, by which a more summary mode of proceeding has been established and all objections to want of form in the proceedings against offenders, are entirely taken away; persons employed as door-keepers to gambling-houses, their aiders, abettors, advisers, counsellors and procurers, are subject to a fine not exceeding one thousand dollars, nor less than one hundred, or imprisonment, not less than one, nor more than six months. And every house of entertainment or public resort, whether licensed or not as a tavern, is declared to be a tavern within the meaning of that, and all former acts made for the prevention, discouragement, or suppression of unlawful gaming; and every house within the curtilage thereof, or usually let therewith, shall be deemed a part of the tavern, unless actually leased or demised for one year at least, by lease duly recorded, previous to the time of any offence against any act for preventing unlawful gaming, committed therein.

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 licence expressed by the. grant of a franchise, are guilty of the first original offence, of encroaching on the royal prerogative. 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 first 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. This 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 oeconomy of the commonwealth.

The statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked i, that in one statute only, 5 Ann. c. 14, there is false grammer 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 exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 100l. per annum; 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

i Burn's Justice, tit. Game, Sec. 3.

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 assises 16. And, lastly, by statute 28 Geo. II, c. 12, no person however qualified to kill, may make merchandize of this valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture, as if he had no qualification 17.

k Ibid. eod. tit.

16. Any person shooting, hunting, or ranging upon the lands of another, or fishing, or fowling in any creeks, or waters within the bounds of any other, shall forfeit three dollars, to the informer; or to the poor, if the owner of the land be the informer; and moreover be liable to the action of the party grieved for damages. And upon a third conviction may be bound to his good behaviour for a year. L. V. 1794, c. 88. And any person shooting or killing a tame deer having a bell or collar on it's neck, shall be liable to an action of trespass by the owner: and by the same act any person using fire hunting or the killing of deer by such means on patented lands is subject to a fine of four dollars. L. V. 1794, c. 113, and the act of 1800, c. 40, likewise imposes a penalty of five dollars (or whipping, if the offender be a slave) upon any person killing a deer between the first day of January and the first of August: but that act does not extend to any of the counties west of the Allegany mountain.

17. To this head of offences against the public police, or œconomy, we may refer,

1. the laws which prohibit the importation of felons convict; under a penalty of fifty pounds upon the captain or master of the vessel importing them. L. V. 1794, c. 35.

2. & 3. Those which prohibit the importation of slaves; under the penalty of two hundred dollars upon the importer, buyer, or seller for every slave imported, bought or sold: and every slave brought into the state, directly or indirectly from Africa or the West Indies, or any other place out of the limits of this commonwealth, may be apprehended, and transported out of the commonwealth at the expence of

the importer. And every master of a vessel or other person bringing any free negro or mulatto into the commonwealth, by water, or by land, shall forfeit one hundred dollars, and the negro or mulatto may be apprehended and sent back to the place from whence he came, at the expence of the importer. L. V. 1794, c. 103, and 164. Sess. Acts, 1800, c. 70. Sec. 4.

4. Free negroes and mulattoes residing in any town must be registered; and any person employing them without a certificate of registry, shall forfeit five dollars to the informer: and those who have no certificate may be committed to jail until one be produced. And the like regulations are extended to such as go at large, or hire themselves to labour in counties. L. V. 1794, c. 163.

5. The permitting any slave to go at large, and trade or hire himself out as a free man, in which latter case he may be sold by order of the court or corporation, and formerly twenty-five per cent. but now, one third of his value shall be applied towards lessening the county levy; and in the former case the master is subject to a fine of thirty dollars. L. V. 1794, c. 103. Sec. 25, 26. Sess. Acts, 1800, c. 70.

6. Dealing with slaves without licence from their masters; and harbouring of slaves, are both, offences punishable by fine; 1794, c. 103. § 14. 16. 1797, c. 4. 1801, c. 21. And,

7. The keeping or carrying any gun-powder, shot, club, or other weapon, whatsoever, offensive or defensive, by any negroe or mulatto whatsoever (except in certain special cases) is an offence, for which the gun or other weapon may be seized, and the offender whipped, by order of a justice of the peace. And,

8. Any slave administering medicine, except with the consent of his master, and the person in whose family the medicine may be administered, may be guilty of Felony without benefit of clergy, or acquitted according to the circumstances of the case. L. V. 1794. c. 103.

9. To prevent the practice of free-negroes granting copies of the register of their freedom, to runaway slaves who by virtue thereof have passed for freemen, the law makes the doing so, under any pretext whatsoever, felony, in such free-negroes or mulattoes, as may be guilty of any such offences. L. V. 1797, c. 4. Sessions Acts.

10. The masters or skippers of vessels carrying slaves out of the state without complying with the directions of the law, are subject to a penalty of five hundred dollars, for every slave he shall so carry or attempt to carry, and moreover be liable to the owner for the value of the slave. L. V, 1797, c. 4. Sessions Acts.

11. Any person counterfeiting, or aiding in counterfeiting any writing, whereby any slave may be declared to be emancipated or suf-

fered to go at large, or pass as a freeman, for any space of time, is subject to a fine of two hundred dollars, and one years imprisonment, L. V. 1795, c. 11.

12. And by the act of 1801, c. 21. any master or skipper of a vessel, suffering a slave to come on board his vessel or dealing with him, without leave in writing from the master of the slave, is subject to an additional penalty of twenty dollars.

CHAPTER THE FOURTEENTH.

OF HOMICIDE.

IN the ten preceding chapters we have considered, first, such crimes and misdemesnors 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 it's 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 volume. 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, 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, whenever offenders were fined, "pars mulctae regi, vel civitati, pars ipsi qui vindicatur vel propinquis ejus, exsolvitur."

These crimes and misdemesnors 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 it's 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 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 sha-

a Stiernh. l. 1, c. 5.

b de mor. Germ. c 12.

dow 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 hath 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 murder6 1. For, as Bractond very justly observes, ''istud homicidium si fit ex livore, vel delectatione effundendi humanum sanguinem, licet juste occidatur iste, tamen occisor peccat mortalitur, propter intentionem corruptam." And farther, if judgment of death be given by a judge not authorised by lawful commission, and execution is done accordingly, the judge is guilty of murder c. And upon this account sir Mathew 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 assises, and try prisoners; having very strong objections to the legality of the usurper's commissionf: 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 person doth it of his own head, it is held to be murder g: even

c 1 Hal. P. C. 497. d Fol. 120.

e 1 Hawk. P. C. 70. 1 Hal. P. C. 497.

f Burnet in his life.

g 1 Hal. P. C. 501. 1 Hawk. P. C. 70.

1. The killing of slaves outlawed was formerly excusable, and perhaps even justifiable; but that act may now be considered as repealed. For the legislature in 1792, rejected that part of the bill reducing into one act the several acts concerning slaves, which had been reported by the committee of revisers, as a law still in force. See the report of the committee, to the governor, June 23, 1793, p. 173, and the act passed in 1792, Edi. 1794, c. 103.

though it. be the judge himself h. It must be farther 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 licence 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 by 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 himl. 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 permittunt." 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

h Dalt. Just. c. 150.

i Finch. L. 31. 3 Inst. 52. 1 Hal. P. C. 501.

k 3 Inst. 52, 212.

1 1 Hal. P. C. 494. 1 Hawk. P. C. 71.

m 1 Hal P. C. 494. n de jure Goth. l. 3. c. 5.

o 1 Hal. P. C. 495. 1 Hawk. P. C. 161.

in a gaol, or going to gaol, assault the gaolor 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, de malefactoribus in partis, and 3 and 4 W. and M. c 10. 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. 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 naturer; and also by the law of England, as it stood so early as the time of Bracton s, and as it is since declared by statute 24 Hen. VIII, c. 5. 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 day time, unless it carries with it an 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 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 factw: and, by the Roman law of the twelve tables,

p 1 Hal. P. C. 496.

r Puff. L. of N. 1. 2. c. 5.

t 1 Hal. P. C. 488.

w Potter. Antiq. b. 1. c. 24.

q 1 Hawk. P. C. 71.

s fol. 155.

u Exod. xxii. 2.

a thief might be slain by night with impunity; or even by day, if he armed himself with any dangerous weapon x: which amounts very nearly to 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 otherb. 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 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 a 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 well-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 dis-

x Cic. pro. Milone. 3. Ff. 9. 2. 4.

y "Divus Hadrianus rescripsit, eum qui stuprum sibi vel suis inferentem occidit, dimittendum." (Ff. 48. 8. 1.)

z de legib. Hebręor. l. 4. c. 3. a Bac. Elem. 34. 1 Hawk. P. C. 71. b 1 Hat P. C 485, 486. c Ess. On Gov. p. 2. c. 5.

charged, 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 mand: for the act is lawful, and the effect is merely accidental. 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 was 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) murdere; for the act of immoderate correction is unlawful. Thus by an edict of the emperor Constantine f, when the rigor 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 sit2."

d 1 Hawk. P. C. 73, 74. f Cod. l. 9. t. 14.

e 1 Hal. P. C. 473, 474.

2. The law was nearly the same in Virginia formerly. But the act, inhuman in itself, and in its construction extended far beyond its true intent, was repealed in the year 1788, c. 23. Sessions Acts.

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 of 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 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 has 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. 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 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 brawl 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 it's 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

g 1 Hal. P. C. 473. 1 Hawk. P. C. 74.

h Plato de LL. lib. 7. Ff. 9, 2, 7.

i Hawk. P. C. 73.

k Ibid. 74. 1 Hal. P. C. 472. Fost. 261.

of homicide by 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.

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 hath not begun to fight, or (having begun) endeavours to decline any farther 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, should 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 fictitiously, 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 hie 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 farther; "qui cum aliter tueri se non possunt, damni culpam dederint, innoxii suntq." The party assaulted must therefore

l Staunf. P. C. 16. m 3 Inst. 55, 57. Fost. 275, 276.

n 3 Inst. 55. o Fost. 277.

p 1 Hal. P. C. 481, 483. q Ff. 9, 2, 45.

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: though 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 himselfx.

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 preferable to that of another, where one of them must inevitably perish. As, among others, in that case men-

r 1 Hal. P. C. 483, s Puff. b. 2, c. 5, Sec. 13.

t 1 Hal. P. C. 479. u Ibid. 482

w 1 Hawk. P. C. 75. x 1 Hal. P. C. 484.

tioned 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 kills another se defendendo, lord Bacona 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 farther 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

y Elem. c. 5. See also 1 Hawk. P. C. 73. z 1 Hawk. P. C. 72. a Elem. c. 5.

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 ax 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 likewisec casual homicide was excused, by the indulgence of the emperor signed with his own sign manual, "adnotatione principes:" otherwise the death of a man, however committed, was in some degree punishable. Among the Greeksd homicide by misfortune was expiated by voluntary 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 homicidef: 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 deathh; 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,

b Numb, c. 35, and Deut. c. 19. c Cod. 9, 16, 5.

d Plato, de Leg. lib. 9.

e To this expiation by banishment the spirit of Patroclus in Homer may be thought to allude, when he reminds Achilles, in the twenty-third iliad, that when a child, he was obliged to flee his country for casually killing his playfellow;

"nhpioj ou/k e/qelwn."

f Stiernh, de jure Goth. l. 3. c. 4. g De Morney, on the Digest.

h 2 Inst. 148, 315.

i 1 Hal. P. C. 425, 1 Hawk. P. C. 75. Fost. 282, &c.

k Fost. 287.

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 acquittaln 3.

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.

Self-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

l Fost. 283 m 2 Hawk. P. C 381. n Fost. 288 o "Si quia impatientia doloris, aut taedio vitae, aut morbo, aut furore, aut pudore, mori maluit, non animadvertatur in eum." Ff. 49. 16. 6. p Pott. Antiq. b. 1. c. 26.

3. In case it be found by the country that any man by misfortune, or in his own defence, or otherwise without felony, hath killed another, he shall be acquitted. L. V. 1794, c. 43.

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 himselfr. 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 form 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 ss.

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; 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,

q Keilw. 136.

r 1 Hawk. P. C. 68. 1 Hal. P. C. 413.

s See page 24.

ss 1 Hal. P. C. 413.

which could not accrue till the instant of her husband's death t. 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 4.

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 incidently mentioned in the preceeding 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.

1. Manslaughter is therefore thus defined u, 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; quae aut casu, aut etiam sponte committuntur, sed in subitaneo, quodem iracundiae colore 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

t Finch. L. 216.

w Stiern. de jure Goth. l. 3. c. 4.

u 1 Hal. P C. 466. x 1 Hawk. P. C. 82

4. It may be doubted whether a forfeiture to the commonwealth is not incurred in this case, notwithstanding the act of 1794, c. 74. §. 31, for it is said, that the forfeiture in case of a person felo de se, takes place as soon as he is found by the inquest to be felo de se; and not upon process of outlawry, conviction or attainder. The case then would seem to be omitted in the act.

the law pays that regard to human frailty, as not to put a hasty and 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, but 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 nonnecessity 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

y Kelyng. 135.

a Plutarch, in vit. Solon.

c Stiernh, de jure Goth. l. 3. c. 2.

e Sir T. Raym. 212.

z Fost. 296. b Ff. 48, 5, 24. d 1 Hal. P. C. 486.

mischief. 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 circumtances under which the original act was done: if it were in a country village, where few passengers are, and he calls out 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 j according to the nature of the act which occasioned it 5. If it be in prosecution of a felonious intent, or in it's consequences naturally tended to bloodshed, it will be murder6; but if no more was

f 3 Inst. 56. g Kel. 40.

h 3 Inst. 57.

j Our statute law has severely animadverted on one species of criminal negligence, whereby the death of a man is occasioned. For by statute 10 Geo. II, c. 31, if any waterman between Gravesend and Windsor receives into his boat or barge a greater number of persons than the act allows, and any passenger shall then be drowned, such waterman is guilty (not of manslaughter, but) of felony, and shall be transported as a felon.

5. Whenever any person shall be charged with involuntary manslaughter happening in consequence of an unlawful act, the attorney for the commonwealth with leave of the court, may wave the felony, and proceed as for a misdemeanour; and may give in evidence any act of manslaughter, and the party on conviction shall be fined, or imprisoned, as in cases of misdemeanour; or, he may charge both offences in the same indictment, in which case the jury may acquit the party of the one, and find him guilty of the other charge. L. V. 1796, c. 2. Sec. 12.

6. And herein I apprehend the law is not altered notwithstanding the act mentioned in the last note; for if the death happen in consequence of an attempt to perpetrate arson, rape, robbery or burglary, it will not only be murder, but murder in the first degree under the same act. We must therefore understand the twelfth section as relating only to such unlawful acts, as do not amount to felony. See L. V. 1796, c. 2. §. 2.

intended than a mere civil trespass, it will only amount to manslaughter i 7.

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 burnt in the hand, and forfeit all his goods and chattels 8.

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 throsts 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

i Foster. 258. 1 Hawk. P. C. 84.

7. Or a misdemeanour, under the twelfth section of the act above mentioned; as if a man going to shoot at wildfowl upon the lands of another without his permission first obtained, should without intention of committing any other trespass, happen to kill a person, in discharging his gun: this, I apprehend, might now be no more than a misdemeanour. V. L. 1796, c. 2. §. 2.

8. Whoever shall be convicted of any voluntary manslaughter shall be sentenced to undergo an imprisonment at hard labour and solitary confinement in the penitentiary house for not less than two nor more than ten years, and to give security for his good behaviour for life, or less time, according to the nature of his offence, and for the second offence he shall undergo the like punishment, for any time not less than six, nor more than fourteen years. L. V. 1796, c. 2. §. 11.

>> But note; the punishment, if the offender be a slave, remains as at the common law.

If any person shall within any fort, or other place, or district under the sole and exclusive jurisdiction of the United States, commit manslaughter, he shall, on conviction be imprisoned not exceeding three years, and fined, not exceeding one thousand dollars. L. U. S. 1 Cong. 2 Sess. c. 9. §. 7.

and the English, at the accession of James the firstk; 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 slabber had given the first blow; and 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, is doubted n. But if the party slain had a cudgel in his hand, or had thrown a pot or a 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 9.

2. We are next to consider the crime of deliberate and wilful murder; a crime at which human nature starts, and which is

k 1 Lord Raym. 140.

m Fost. 301. 1 Hawk. P. C. 77.

c 1 Hawk. P. C. 77.

1 Fost. 299, 300 n 1 Hal. P. C. 470.

9. This statute is not in force in Virginia: See Note, page 33. But by the act of 1794, c. 99. If any person shall shoot or stab any person within the commonwealth with an intent to maim, disfigure, or kill; the person or persons so offending, their counsellors aiders and abettors knowing of, and privy to the offence, shall be judged felons, and suffer as in case of felony. But the punishment is now changed to imprisonment in the penitentiary house for any time not less than six months, nor more than two years. L. V. 1796, c. 2. §. 13.

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, signifies 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

p Gen. ix. 6. q Numb. xxxv. 31.

r L. of N. b. 8. c. 3. s Dial. de Scacch. l. 1. c. 10.

t Stiernh. de jure Sueon. l. 3 c. 3. The word murdre in our old statutes also signified any kind of concealment or stifling. So in the statute of Exeter, 14 Edw. I. "je riens ne celerai, ne sufferai estre cele ne murdre:" which is thus translated in Fleta, l. 1. c. 18. Sec. 4. "Nullum, veritatem celabo, nec celari permittam nec murdrari." And the words "pur murdre le droit" in the articles of that statute, are rendered in Fleta ibid. Sec. 8. "pro jure altcujus murdriendo."

u Glanv. l. 14. c. 3.

w Bract. l. 3. tr. 2. c. 15. Sec. 7. Stat. Marlbr. c. 26. Fost. 281.

x Stiernh. l. 3. c. 4. y l. 3. tr. 2. c. 15.

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 county 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 Cokec; "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 shew a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil.

Next, it happens when a person of such sound discretion unlawfully killeth. The unlawfulness arises from the killing without warrant 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 misdemesnor, though formerly it was held to be murderd. 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

z 1 Hal. P. C. 447. b P. C. l. 1. c. 10. d 1 Hal. P. C. 425.

a Bract. ubi supr. c 3 Inst. 47.

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. 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. 9, 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: 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 poena judicem puniunt; peculiari 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 conscientia as killing with a sword; 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. 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 may be primarily intended:

c 3 Inst. 319. 2 Hal P. C. 185. f 3 Inst. 43.

g Fost. 132. In the case of Macdaniel and Berry, reported by sir Michael Foster, though the then attorney general declined to argue this point of law, I have good grounds to believe it was not from any apprehension of his that the point was not maintainable, but from other prudential reasons. Nothing therefore should be concluded from the waiving of that prosecution.

h Mirror, c. 1. Sec. 9. Britt. c. 52. Bracton. l. 3. c. 4.

i Stiernh. de jure Goth. l. 3. c. 3. k Ff. 43, 8, 1.

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 *. 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 potion 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: 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 Mathew Hale very justly questions the law of this determination r. 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.

Farther; the person killed must be "a reasonable creature in being, and under the king's peace," at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are all under

l 1 Hawk. P. C. 78. m 1 Hal. P. C. 432. n Palm. 545. o Ibid. 431. p Mirr. c. 4. Sec. 16. See Vol. III. page 122. q Britt. c. 5. 4 Inst. 251. r 1 Hal. P.C. 430. s 1 Hawk. C. P.. 79.

* Or if a master refuses his apprentice necessary food or sustenance, or treats him with such continued harshness and severity as his death is occasioned thereby, the law will imply malice and the offence will be murder. Leach. 127..... Christian.

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 it's 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 it's 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 it's parent) is admitted to convict the prisoner10.

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 praecogitata, is not so properly

t 3 Inst. 50. 1 Hal. P. C. 433.

u 3 Inst. 50. 1 Hawk. P. C. 80. But, see 1 Hal. P. C. 433.

v See Barrington on the statutes. 425.

10. This statute was introduced into our code in the year, 1710. The act was reported to the legislature in 1792, as a law still in force; it was then (I apprehend) repealed. See the report of the committee of revisors to the governor, June 23, 1792, p. 162. Sec. 7. See also, the Note, post 358.

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 a faire un male chose x: and it may be either express, or implied in law. Express malice 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. 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 the life and fortune, as well of the person insulted, as of him who hath given the insult. 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 horses tail, and dragged him along the park; when a master corrected his servant with an iron bar, and a scholmaster 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

w Foster, 256.

y 1 Hal. P. C. 451.

x 2 Roll. Rep. 451. z 1 Hawk. P.C. 82.

a deliberate act of slaughter a. Neither shall he be guilty of a less crime, who kills another in consequence of such a wilful act, as shews 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 praecogitata, or evil intended beforehand d 11.

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 shewed 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

a 1 Hal. P. C. 454, 473, 474. b Lord Raym. 143.

c 1 Hawk. P. C. 74. d Ibid. 84.

e 1 Hal. P. C. 455.

f 1 Hawk. P. C. 82, 1 Hal. P. C. 455, 456.

g Fost. 291.

11. See the Notes, page 192, and 193, ante.

intention with which he interposes, the law will imply malice, and the killer shall be guilty of murder h. And if one intends to do another felony and 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 the guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence l.

The punishment of murder, and that of manslaughter, were 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 coun-

h 1 Hal. P. C. 457. Foster, 308, &c.

i 1 Hal. P. C. 453. j Ibid. 466.

k Ibid. 429. l Fost. 255.

m 1 Hal. P. C. 450.

n 23 Hen. VIII. c. 1. 1 Edw. VI. c. 1 12. 4 and 5 Ph. and M. c 4.

sellors12. 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 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

o "The body of a malefactor shall not remain all night upon the tree; but thou shalt in anywise bury him that clay, that the land be not defiled." Dent. xxi. 23.

p "Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit; ut, et conspectu deterreantur alii, et solatio sit cognatis inter emptorum, eodem loco poena reddita, in quo latrones boncidia fecissent. Ff. 43, 19, 28, Sec. 15.

12. L. V. 1794, c. 47. Accordant. They are still punishable with death, if it be found murder in the first degree. L. V. 1796, c. 2. §. 14. But accessories to murder in the second degree, not being within that act, are punishable with imprisonment in the jail and penitentiary house, for a period not less than one, nor more than ten years. L. V. 1799, c. 58. Sess. Acts. See the next note.

NOTE, by the common law a conspiracy, or even an attempt to commit murder, if no homicide or other felony be actually committed, is not felony.

But, by the laws of Virginia, if any slave shall consult, advise, or conspire to rebel, or make insurrection, or shall plot or conspire the murder of any person whatsoever, every such consulting, plotting, or conspiring, shall be deemed felony, and any slave convicted thereof, shall suffer death without benefit of clergy. L. V. 1794, c. 103. §. 21.

And, by a subsequent act, every free person who shall advise or conspire with a slave to rebel or make insurrection, or who shall advise or assist such slave in the murder of any person whatsoever, shall, upon conviction, suffer death, without benefit of clergy. L. V. 1797, c. 4. But the punishment is now altered to imprisonment in the penitentiary, not less than one, nor more than ten years. V. L. 1799, c. 58.

day but one, (unless the same shall he Sunday, and then on the Monday following) 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, 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 act13.

q Fost 107.

13. The legislature of Virginia considering that the several offences which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment, have declared, that all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing; or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree: and every person thereof convicted, his aiders, abettors, and counsellors, shall suffer death by hanging by the neck. And all other kinds of murder shall be deemed murder of the second degree; and every person duly convicted thereof shall be impried at hard labour and solitary confinement in the public penitentiary, for a period not less than five, nor more than eighteen years, as a jury shall decide: but the court are to direct for what portion of that period (not more than one half, nor less than one twelfth part thereof,) he shall undergo solitary confinement in the cells, and be kept on coarse and low diet. L. V. 1796, c. 2. §. 2, 4, 14, 15, 22. But nothing in this act relates to slaves guilty of murder, or any other crime.

By the act of 1802, L. V. murder, in the first degree, is further explained to extend to such as may be perpetrated by "duress of imprisonment, or confinement, or by starving, or by wilful, malicious, and excessive whipping, beating, or other cruel treatment or torture;" all which cases were probably comprehended under the act of 1796, c. 2.

If any person shall within any fort or other place, or district of country under the sole and exclusive jurisdiction of the United States, commit murder, he shall, upon conviction, suffer death: and the court in their discretion may add to the judgment, that the body of such offender shall be delivered to a surgeon for dissection. L. U.S. 1 Cong. 2 Sess. c. 9. §. 3, 4.

By the Roman law, parricide, or the murder of one's parents or children, was punished in a much severer mariner 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 the 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 ss.

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

r Ff. 48, 9, 9. s Cic. pro S. Roscio. Sec. 25. ss 1 Hal. P. C. 380. t Foster. 107, 324, 336.

u See page 75.

w "Omnium gravissima censetur vis facta ab incolis in patriam, subditis in regem, liberis in parentes, maritis in uxores, (et vice versa) servis in dominos, aut etium ab homine in semet ipsum." Stiernh, de jure Goth. l. 3. c. 3.

NOTE, accessories before the fact in murder in the second degree, were deprived of the benefit of clergy, by the act of 1794, c. 47. As they are not mentioned in the act of 1796, c. 2, their case will come under the provisions of the act of 1799, c. 58, which limits the punishment in such cases to imprisonment in the penitentiary house at hard labour, or in solitude, for a period not less than one, nor more than ten years. Accessories after the fact, are punishable in the like manner, for a period not less than six months, nor more than two years. L. V. 1796, c. 2. Sec. 13.

Petit treason, 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 traiterous 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 m. 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 it's 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. Which crime is also distinguished from murder in it's punishment.

The punishment of petit treason, in a man, is to be drawn and hanged, and in a woman, to be drawn and burnedc: 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 sexe. Persons guilty of petit treason were first debarred the benefit of clergy, by statute 12 Hen. VII. c. 7, which

x 1 Hawk. P. C. 89. 1 Hal P. C. 380.

y 1 Hal P. C. 381. z Ibid.

a Fost. 337.

b Foster. 106. 1 Hal. P. C. 378 2 Hal. P. C. 184.

c 1 Hal. P. C. 382 3 Inst. 311. d Caesar de bell. Gall. l. 6. c. 18.

e See page 93

has been since extended to their aiders, abettors, and counsellors, by statutes 23 Hen. VIII. c. 1, and 4 and 5 P. and M. c.

4 14.

14. Every person liable to be prosecuted for petit treason, shall be indicted, proceeded against, and punished as is directed in other kinds of murder. L. V. 1796, c. 2. Sec. 3.

Accessories in petit-treason, are punishable, as accessories in case of murder. See note, page 202.

CHAPTER THE FIFTEENTH.

OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

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 misdemesnors, as more peculiarly affect the security of his person, while living.

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

I. Mayhem, mayhemium, was, in part, considered in the preceding volume 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

a See Vol. HI, page 121.

b Brit. l. 1, c, 25. 1 Hawk. P. C. 111.

nose, or the like, are not held to be mayhems, at common law; because they do not weaken, but only disfigure him.

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 shewn 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 poena capitalis, aliquando perpetuum 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

c 3 Inst. 118....Mes, si la pleynte soit faite de femme qu' avera tollet a home ses membres, en tiel case perdra le feme la une meyn par jugement, come le membre dount cle avera trespasse. (Brit. c. 25.)

d Stiernhook de jure Sueon. l. 3, t. 3.

e See page 12. f 1 Hawk. P. C. 112.

g Bract, fol. 144.

h Sir Edward Coke (3 Inst. 62.) has transcribed a record of Henry the third's time, (Claus. 13 Hen. III, m 9.) by which a gentleman of Somersetshire and his wife, appear to have been apprehended and committed to prison, being indicted for dealing thus with John the monk, who was caught in adultery with the wife.

i 3 Inst. 62.

king'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 to disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy k 1.

k On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a labourer, were indicted in 1722; Coke for hiring and abetting Woodburn, and Woodburn for the actual fact, of slitting the nose of Mr. Crispe, Coke's brother-in-law. The case was somewhat singular. The murder of Crispe was intended, and he was left for dead, being terribly hacked and disfigured with a hedge-bill; but he recovered. Now the bare intent to murder is no felony; but to disfigure, with an intent to disfigure, is made so by this statute; on which they were therefore indicted. And Coke, who was a disgrace to the profession of the law, had the effrontery to rest his defence upon this point, that the assault was not committed with an intent to disfigure, but with an intent to murder; and, therefore, not within the statute. But the court held, that if a man attacks another, to murder him with such an instrument as a hedge-bill, which cannot but endanger the disfiguring him; and in such attack happens not to kill, but only to disfigure him; he may be indicted on this statute; and it shall be left to the jury whether it were not a design to murder by disfiguring, and consequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of such previous intent to disfigure, in order to effect their principal intent to murder, and they were both condemned and executed. (State Trials. VI. 212.)

1. The offence of mayhem being variously described, and the punishment annexed thereto, as various, by the laws of Virginia, and of the United States, I shall subjoin a description of it, from each.

If any person shall unlawfully cut out, or disable the tongue, put out an eye, slit a nose, bite or cut off a nose or lip, or cut off, or disable any limb, or member of any person whatsoever, within this commonwealth; in so doing, to maim, or disfigure such person in any of the manners before mentioned; the offender, his counsellors, aiders and

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 2. This, though no such evil consequence ensues, is

abettors, knowing of, and privy to the offence, shall be felons, and suffer as in case of felony. L. V. 1794. c. 99. This offence being clergyable, the punishment is now changed, (where not comprehended under a subsequent act mentioned in the next paragraph,) to imprisonment, and solitary confinement in the penetentiary house, for any time not less than six months, nor more than two years. L. V. 1796, c. 2. §. 12.

Whosoever on purpose, and of malice aforethought BY LYING IN WAIT, shall unlawfully cut out, or disable the tongue, put out an eye, slit the nose, cut off the nose, ear, or lip, or cut off or disable any limb, or member of another, with intention in so doing, to maim or disfigure such person, "OR, shall voluntarily, maliciously, and of purpose PULL, or PUT OUT AN EYE, while FIGHTING, or otherwise; every such offender, his aiders, abettors, and counsellors, shall undergo a confinement in the penetentiary house for any time not less than two, nor more than ten years; and shall also pay a fine not exceeding one thousand dollars, three fourths of which shall be to the use of the party grieved, L. V. 1796, c. 2. Sec. 10. It would require great accuracy to distinguish some of these last cases from the former, unless where the mayhem was proved to have been perpetrated in consequence of actual malice aforethought, and lying in wait. By the act of 1802, biting off a nose, ear, or lip, or other member, with intent to kill, maim, or disfigure, is now punishable in the same manner as the cutting them off with the like intention. In the case of slaves committing mayhem, the offender is still entitled to the benefit of clergy.

The laws of the United States define mayhem, nearly in the words of the statute recited in the text; to which they superadd the cutting off an ear; the offender, his counsellors, aiders, and abettors knowing of, and privy to the offence, shall, on conviction be imprisoned, not exceeding seven years, and fined, not exceeding one thousand dollars. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 13.

2. If any person shall shoot, or stab any person within this commonwealth, with intent to maim, disfigure or kill; the person or persons so offending their counsellors aiders and abettors, knowing of, and privy to the offence, shall be deemed felons. L. V. 1794, c. 09, and by the act of 1796, c, 2. Sec. 13, the punishment is imprisonment in the penitentiary house for any time not less than six months, nor

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.

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 lucre3 take any woman, being maid, widow, or wife, and having substance either in goods or lands, or 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 39 Eliz. c. 9, the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessories before the fact 4.

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 shew this,

l 1 Hawk. P. C. 110.

more than two years. And by the act of 1802, malicious stabbing, or shooting any person with intent to maim, disfigure, disable or kill is punishable by confinement in the penitentiary, not less than two, nor more than ten years; and by fine, not exceeding one thousand dollars; three fourths of which shall be to the use of the party grieved; who may nevertheless be a competent witness against the offender, not only in cases of stabbing or shooting, but in all cases of mayhem.

3. The word lucre is not in the enacting clause of our law.

4. The act of 1794, c. 104, Sec. 19, is nearly in the same words, but the benefit of clergy is not taken away from the offence; consequently it is now punishable by imprisonment in the penitentiary house, not less than six months nor more than two years. V. L. 1796, c. 2. Sec. 13.

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 thereunto by flatteries after the taking, yet this is felony if the first taking were against her will n: and so vice versa, if the woman be originally taken away with 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 be 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 °. 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.

An inferior degree of the same kind of offence, but not attended with force, is punished by the statute 4 & 5 Ph. & 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 gover-

m 1 Hal. P. C. 660. 1 Hawk. P. C. 109.

n 1 Hal P. C. 660. o 1 Hawk. P. C. 110.

p 1 Hal. P. C. 661.

q Cro. Car. 488. 3 Keb. 193 State Trials. V. 455.

r Stra. 1162.

nors, 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. 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 almost useless, by provisions of a very different kind, which make the marriage totally void s, in the statute 26 Geo. II. c. 33 5.

III. A third offence, against the female part also of his majesty's subjects, but attended with greater aggravations than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowlege 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 the 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,

s See Vol. I. p. 437, &c. u Cod. 9. tit 13.

t Deut. xxii. 25.

5. The act of 1794, c. 104, §. 20, is borrowed from the statute of Philip and Mary here mentioned. The punishment of the offender is imprisonment not exceeding two years. The forfeitures of the real estate of the feme, takes place only where she is under the age of fourteen years, instead of sixteen; but the male is subject to imprisonment as above mentioned, if she be under sixteen years. L. V. 1794, c, 104. Sec. 15, and 20.

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 arts 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 poenae, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur; quia hoc ipsum velle mulierum, ab insiidis nequissimi hominis, qui meditatur rapinam, inducitur, 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 it's 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 persons of the injury she has suffered: and afterwards should acquaint the high constable of the hundred, the coroners, and sheriff with the outrage a. This seems to correspond in some

w Bracton. l. 3. c. 28.

y LL. Guil. Conqu. c 19.

a Glanv. l. 14. c. 6. Bract. l. 3. c. 28.

x Stieinh. de jure Sueon. l. 3. c. 2. z 1 Hal. P. C. 632.

degree with the laws of Scotland and Arragon 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.

In 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 Mathew 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

b Barrington. 142.

c Glanv. l. 14. c. 6. Bract. l. 3. c. 28.

d 1 Hal. P. C. 631.

their seduction, not having been altered by either of the subsequent statutes.

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 supplet ętatem, as has in some cases been shewn; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind e.

The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind f: not allowing any 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 nequitię 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 Mathew 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 tes-

e 1 Hal. P. C. 631. g 1 Hal. P. C. 629. h fol. 147.

f Cod. 9, 9, 22. Ff. 47, 2, 39. [1] Hawk. P. C. 108.

timony, 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 like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned.

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 lye. 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 declarations 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

i 1 Hal. P. C. 634.

heard, may prove not to be credible, or such as the jury is bound to believe. For one excellence of the trial by jury is, that the jury are triers of the credit of the witnesses, as well as of the truth of the fact.

"It is true, says this learned judge 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 vigilence; the heinousness of the offence many times transporting the judge and jury with so much indignation, that they are overhastily carried to the conviction of the person accused thereof, by the confident testimony of sometimes false and malicious witnesses 6."

j 1 Hal. P. C. 635.

6. If a slave attempt to commit a rape on the body of a white woman, he may be punished by castration. L. V. 1794. c. 103. Sec. 18.

The punishment of rape, as also the carnal knowlege and abuse of a female child under ten years of age, was formerly death, without the benefit of clergy; and in the case of a slave remains so still. L. V. 1794, c. 130.

But now, every free person convicted of a rape, shall undergo an imprisonment at hard labour, or in solitude for a period not less than ten, nor more than twenty-one years; which is the longest period of imprisonment prescribed by the act. L. V. 1796, c. 2. §, 4. Accessories before the fact are punishable in the same manner and degree.

The carnal knowlege of a female under the age of ten years, not being one of the offences enumerated in the last mentioned act, the punishment, under the act of 1799, c. 58, is imprisonment in the penetentiary house, at hard labour and solitary confinement for any period not less than one, nor more than ten years.

IV. What has been here observed, especially with regard to the manner of proof, which ought to be the 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 it's 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 gladio ultore, ut exquisitis poenis subdantur infames, qui sunt, vel qui futuri sunt rei." Which leads me to add a word concerning it's punishment.

This, the voice of nature and of reason, and the express law of God m, determine to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven: so that this is an universal, not "merely a provincial, precept. And our antient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death n; though Fleta o says they should be buried alive: either of which punishments was indifferently used for this crime among the antient Goths p. But now the general punishment of all felonies is the same, namely,

k See in Rot. Parl. 50 Edw. III, N. 58, a complaint, that a Lombard did commit the sin "that was not to be named." (12 Rep. 37.) 1 Cod. 9, 9, 31. m Levit. xx. 13, 15. n Brit. c. 9. o L. 1. c. 37. p Stieinh. de jure Goth. l. 3. c. 2.

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 paena plectantur q 7.

These are all the felonious offences more immediately against the personal security of the subject. The inferior offences or misdemesnors, 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 farther to add to what has already been observed in the preceding book of these commentaries r; when we considered 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 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 beforementioned. And, in all these cases, besides heavy fine and imprisonment, it is usual to award judgment of the pillory.

q 3 Inst. 59.

s 1 Hawk P. C. 65.

r See Vol. III. p. 120.

7. The punishment in this case is now the same as for the carnal knowlege of a female under ten years of age: and for the same reasons as are mentioned in the Note, page 215.

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 embassador of peace. Accordingly it is enacted by the statute called articuli cleri, 9 Edw. II. c. 3, 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 grieved, it may be sued for before the bishop; whereas otherwise to sue in any spiritual court, for civil damages for the battery, falls within the danger of praemunire t. But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commutation for penance u. So that upon the whole it appears, that a person guilty of such brutal behaviour to a clergyman, is subject to three kinds of prosecution, all of which may be pursued for one and the same offence: an indictment, for the breach of the king's peace by such assault and battery; a civil action, for the special damage sustained by the party injured; and a suit in the ecclesiastical court, first, pro correctione et salute animae by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined: it being usual in those courts to exchange their spiritual censures for a round compensation in money v: perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animae 8.

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, it's nature and incidents, I must content myself with referring the student to what was observed in the preceding volume w,

t 2 Inst. 492, 620. v 2 Roll. Rep. 384.

u Artic. Cler. 9 Edw. II. c. 4. F. N. B. 53. w See Vol. III. page 127.

8. The statute called articuli cleri is not in force in Virginia.

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 it's 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 praemunire, and incapacity to hold any office, without any possibility of pardon y. And we may also add, that by statute 43 Eliz. c. 13, 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 misdemesnors whatsoever, of a notoriously evil example, may be indicted at the suit of the king 9.

x See page 116.

z West. Symbol. part 2. p. 92.

y Stat. 31 Car. II. c. 2. a 1 Hawk. P. C. 210.

9. A citizen of this commonwealth committed to prison, in custody of any officer for any criminal matter, shall not be removed from thence in the custody of another officer, unless it be by habeas corpus, or some other legal writ, &c. L. V. 1794, c. 118.

>> And, by an act made in the year 1800. Any person who of his own free will and accord, or by persuasion of, or combination with any foreign agent, or other person, shall deliver up or surrender, either by his own authority or under colour of any office whatsoever, under the authority of this commonwealth, any free person whomsoever being within the limits of this commonwealth, and entitled to the protection of it's laws, to be transported beyond sea or elsewhere, without the United States, shall on conviction be adjudged a felon, and be imprisoned in the penitentiary house, not exceeding ten years, nor less than one year. And if the person so delivered up be transported to any place out of the jurisdiction of this commonwealth, or of any other

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 offender 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 it's 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 d. And also the statute 11 and 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 imprisonment10. And thus much for offences that more immediately affect the persons of individuals11.

b Exod. xxi. 16. c Ff. 48,15, 1. d Raym. 474. 2 Show. 221. Skin. 47. Comb. 10.

of the United States, and be there tried before any court civil or military, for any criminal offence pretended to have been theretofore committed, and shall be condemned and actually executed, then every person concerned in such delivery and surrender shall on conviction thereof, and due proof of such condemnation and execution be adjudged a felon, and suffer death as accessaries before the fact, in murder of the first degree. L. V. 1800, c. 71.

10. To this head may be referred the several acts prohibiting the citizens of the United States from carrying on the slave trade. L. U. S. 3 Cong. c. 11. 6 Cong. c. 51.

11. To this head also belongs the offence of stealing, or selling any free person for a slave, knowing the person sold to be free: the punishment for which by the act of 1794, c. 103. §. 28, was death without benefit of clergy. But now, the punishment is imprisonment in the

penitentiary house, for not less than one, nor more than ten years. L. V. 1799, c. 58, Sessions Acts. Also, the consulting, advising, or conspiring to murder any person, by a slave or slaves: concerning which, see note, page 201.

To this head of offences against the persons of individuals, we must also refer the act which subjects any negroe or mulattoe bond or free, who shall at any time lift his hand in opposition to any person not being a negroe or mulattoe (except it be in his own defence in case of a wanton assault) to the punishment of whipping, not exceeding thirty lashes, by order of a justice of the peace. L. V. 1794, c. 103. Sec. 17.

CHAPTER THE SIXTEENTH.

OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.

THE only two offences, that more immediately affect the habitations of individuals or private subjects, are those of arson and burglary.

I. Arson, ab ardendo, is the malicious and wilful burning of the house or outhouse 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 it's 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.

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

a Ff. 48. 19. 28. Sec. 12.

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. 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 burnt; but if no mischief is done but to one's own, it does not amount to felony, though the fire was kindled with intent to burn another's 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 misdemesnor, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour f *. 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 †.

b 1 Hal. P. C. 567. c 3 Inst. 69.

d 1 Hawk. P. C. 105. c Cro. Car. 377. 1 Jon. 351.

f 1 Hal. P. C. 568. 1 Hawk. P. C. 106. g Fost. 115.

* An attempt or preparation to set fire to one's own house in a town, though the fire is never kindled, is a misdemesnor... Christian.

† And it has been expressly determined, that if a tenant set fire to the house of his landlord, he is not guilty of arson. Breeme's Case, Leach, 195. 209... Christian.

2. 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 an 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. For which reason, though an unqualified person, by shooting with a gun, happens to set fire to the thatch of a house, this sir Mathew Hale determines not to be felony, contrary to the opinion of former writers i. But by statute 6 Ann. c. 31, any servant, negligently setting fire to a house or out-houses, shall forfeit 100l, or be sent to the house of correction for eighteen months: in the same manner as the Roman law directed "cos, qui negligenter ignes apud se habuerint, fustibus vel flagellis caedi k."

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 burnt 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 and 5 P. and M. c. 4, which expressly denied it to the accessory before the fact o;

h 1 Hawk. P. C. 105. i 1 Hal. P. C. 569.

k Ff. 1, 15, 4. 1 LL. Inae. c. 7.

m Britt. c. 9.

n Stiernh. de jure Goth. l. 3. c. 6.

o Rep. 35. 2 Hal. P. C. 346, 347. Foster. 336.

though now it is expressly denied to the principal in all cases within the statute 9 Geo. I, c. 22 l.

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 shewn in a former chapter p) they also protect and avenge him, in case the might of the assailant is too powerful. And the law of England has so particular and tender a regard

p See page 180.

1. The statutes here referred to are not in force in Virginia. See Note page 33.

Arson at common law; the wilful burning of any court-house, or county or public prison; or the office of the clerk of any court within this commonwealth is declared to be felony without the benefit of clergy, both in the principals and accessories before the fact. L. V. 1794, c. 47.

And by the act of 1794, c. 109, "every person that shall at any time, either in the night or day, maliciously, unlawfully and willingly burn any house or houses whatsoever, or shall comfort, aid, abet, assist, counsel, hire or command any person to commit any of the said offences," shall upon conviction, &c. suffer death without the benefit of clergy. L. V. 1794, c. 109.

But by the act of 1796, every free person duly convicted of the crime of arson, or as accessory thereto, shall be imprisoned in the penitentiary house, at hard labour, or in solitude, not less than five, nor more than twelve years. L. V. 1796, c. 2. §. 4.

But if the offence be not arson, at the common law, it would seem that the punishment must be regulated by the act of 1799, c. 58, which fixes the term of imprisonment to any period not less than one, nor more than ten years.

to the immunity of a man's house, that it stiles 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 supercedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nuisancers, and incendaries: 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.

The definition of a burglar, as given to 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 day time 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 sun-rising, and to end immediately upon sun-set: but the better opinion seems to be, that if there be day-light 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 it's 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.

q Pro domo, 41. r 1 Hal. P. C. 547. s 3 Inst. 63. t See page 180, 181. n 3 Inst. 63. 1 Hal. P. C. 350. 1 Hawk. P. C. 101.

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; 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 habitaculi, vel ecclesiae, etiam murorum portarumve burgi, ad feloniam perpetrandam." And therefore we may safely conclude, that the requisite of it's 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 it's 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 it's branches and appurtenants, if within the curtilage or home-stall z. A chamber in a college,

v 3 Inst. 64.

w Spelm. Gloss. t. Burglary. 1 Hawk. P. C. 103.

x 1 Hal. P. C. 566. Fost. 77.

y Kev. Garland P. 16 Geo. III, by all the judges.

z 1 Hal. P. C. 558. 1 Hawk. P. C. 104.

* Where a house is built, purchased, or rented, and is under repairs, or is making ready for the reception of the owner's family, no burglary can be committed in it, until the owner, or some part of his family goes to inhabit it. Lyon's Case, Leach, 169.... Christian.

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 he 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 it 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 he 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 waggon 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 1 Hal. P. C. 556.

c Foster. 38, 39.

e 1 Hawk. P. C. 104.

b Kel. 84. 1 Hal. P. C. 556. d 1 Hal. P C. 558. f 1 Hal. P. C. 551.

* But where a shop was rented with some of the apartments of a house, it was held that the shop was still part of the dwelling-house, and that burglary might be committed in it as the house of the landlord. Gibson's Case, Leach, 287....Christian.

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..... 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. 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 a 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 no actual breaking for the law will not suffer itself to be trifled with, by such evasions, especially under the cloke 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 *. The entry may be before the breaking, as well as

g 1 Hal. P. C. 553. h 1 Hawk. C. P. 102. 1. Hal. P. C, 552.

i 1 Hawk. P. C. 102.

k Stra. 881. 1 Hal. P. C. 553. 1 Hawk. P. C. 103. l 1 Hal. P. C. 555. 1 Hawk. P. C. 103. Fost. 108.

* In a case where a door had been bored through by an instrument, called a centre-bit, the end of which must have penetrated beyond the internal surface of the door, it was held that this was not sufficient entry to constitute a burglary.

after: for by statute 12 Ann. c. 7, if any 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 house, shall commit any felony; and shall, in the night, breakout 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 Mathew Hale n the negative 2. 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.

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, a 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.

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. & M. c. 9, from all abettors and accessories before the fact p. And, in like manner,

m Elem. 65. n 1 Hal. P. C. 554.

o 1 Hawk. P. C. 105.

p Burglary in any house belonging to the plate glass company, with intent to steal the stock or utensils, is by statute 13 Geo. III, c. 38, declared to be single felony, and punished with transportation for seven years.

When the insertion of an instrument amounts to a burglarious entry, the instrument must be of such a nature as is calculated to effect the intended felony after the breaking is completed Hughes's Case, Leach, 313 .... Christian.

2. The statute of 12 Ann. c. 7, having never been in force in Virginia, this question still remains undecided, here.

the laws of Athens, which punished no simple theft with death, made burglary a capital crime q 3.

q Pott. Antiq. b. 1. c. 26.

3. These statutes are not in force in Virginia. See Note, p. 33.

The act of 1794. c. 47, takes away the benefit of clergy, both from the principals, and accessories before the fact in burglary.

So also, from the principals, but not from accessories, either before or after the fact, in the case of the felonious breaking of any dwelling house, by day, and taking away any goods or chattels being therein, the owner or any person being therein, and put in fear.

And by the act of 1794, c. 109, every person that shall at any time, either in the night or the day, feloniously break any warehouse, or storehouse, and shall take therefrom money, goods, or chattels, wares, or merchandize, to the value of four dollars, or more, or shall aid, assist, counsel, hire or command, any person to break and rob such warehouse, or storehouse, shall on conviction suffer death without the benefit of clergy.

But by the act of 1796, c. 2. "Every person convicted of robbery, or burglary, or as accessory thereto before the fact, shall restore the thing robbed or taken, to the owner, or pay him the full value thereof;" and be imprisoned at hard labour, or in solitude, not less than three, nor more than ten years. But the benefit of this act does not extend to slaves.

CHAPTER THE SEVENTEENTH.

OF OFFENCES AGAINST PRIVATE PROPERTY.

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; larciny 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. Larciny, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larciny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larciny, which also includes in it the aggravation of a taking from one's house or person.

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

Simple larciny then is, "the felonious taking, and carrying away, of the personal goods of another." This 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 should extend, is matter of considerable doubt. At present, we will examine the nature of theft, or larciny, as laid down in the foregoing definition.

1. It must be a taking. 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 larciny. 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 larcinies 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 larciniesc: 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 deter-

a See Vol. II. pag. 8, &c. c 3 Inst. 107.

b 1 Hal. P. C. 504.

* But it is now fully established, that in all cases where horses, or carriages are hired and are never returned, if the jury are of opinion from the circumstances that the persons to whom they are delivered intended at the time of hiring never to restore them, or that the intention to steal them or convert them to their own use existed in their minds at the time they gained possession, they are guilty of felony. Pear's Case, and Major Semple's Case, Leach, 189 and 327. And where a person hires a horse for a particular time, or to go a specific journey, and after complying with the terms of the special agreement, sells it, his possession being then unsupported by any privity of contract or consent of the owner, he is held to be guilty of felony, ibid. And it is now generally held, that if the possession of property is obtained by any contrivance animo furandi, as by pretending to find a valuable ring, cutting cards, or laying wagers, or by undertaking to exchange a note into cash, or gold into silver, it amounts to felony. See the respective cases of Patch. Homer, and Aichles, in Leach, 206, 226, 239.... Christian.

mined, the delivery having taken it's effect. * But bare nondelivery 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 larciny 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 master's goods, may by writ out of chancery (issued by the advice of the chief justices and chief baron, or any two of them) and proclamation being made thereupon, be summoned to appear personally in the court of king's bench, to answer their master's 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. But if he had not the possession, but only the care and oversight of the goods, as the butler of plate, the shepherd of sheep, and the like, the embezzling of them is felony at common lawd. So if a guest robs his inn or tavern of a piece of plate, it is larciny; for he hath not the possession delivered to him, but merely the usee, and so it is declared to be by statute 3 & 4 W. & M. c. 9, if a lodger runs away with the goods from his ready furnished lodgings. Under some circumstances also, a man may be guilty of felony in taking his own goods: as if he steals them from a pawn-broker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with the intent to charge the hundred with the loss according to the statute of Winchesterf l.

d 1 Hal. P. C. 505. f Foster, 123, 124.

e 1 Hawk. P. C. 90.

* It has been decided that if a parcel is left by accident in a hackney coach, and the coachman instead of restoring it to the owner, opens it and embezzles part of its contents, he is guilty of larceny. Wyne's Case. Leach, 320... Christian.

1. The statutes here referred to are not in force in Virginia. See page 33.

2. There must not only be a taking but a carrying away: cepit 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 he 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 larciny 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 larciny h.

3. This taking, and carrying away, must also be felonious; that is, done animo furanai: or, as the civil law expresses it, lucri causa i. 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 knowlege, 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 distrein another's cattle, or seise them: all these are misdemesnors 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

g 3 Inst. 108, 109.

i Inst. 4, 1, 1.

1 1 Hal. P. C. 509.

h 1 Hawk. P. C. 93. k See page 20.

By the act of 1794, c. 142, it is felony to steal any hogshead, or cask of tobacco, lying on or near any public highway, or any part of the tobacco contained therein, although the same may not be in possession of the owner.

The punishment by the act of 1796, c. 2. §. 13. Is imprisonment in the penitentiary house, at hard labour, or in solitude, not less than six months nor more than two years. But this last act does not extend to slaves.

larciny, the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those which may evince 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, larciny 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 larciny 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 immoveable m. And if they were severed by violence, so as to be changed into moveables; 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 mobilility, (which is essential to the nature of larciny) 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 comes again at another time, when they are so turned into personalty, and takes them away; it is larciny! and so it is, if the owner, or any one else, has severed them n. And now, by the statute 4 Geo. II. c. 32, 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

m See Vol. II. p. 16.

n 3 Inst. 109. 1 Hal. P.C. 510.

garden thereunto belonging, or to any other building, is made felony, liable to transportation for seven years; and to steal, damage, or destroy underwood or hedges, and the like, to rob orchards or gardens of fruit growing therein, to steal or otherwise destroy any turnips, potatoes, cabbages, parsnips, pease, or carrots, or the roots of madder when growing, are o punishable criminally, 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 to 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, 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. Stealing ore out of mines is also no larciny, 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 2. 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 r.

o Stat. 43 Eliz. c. 7. 15 Car. II. c. 2. 31 Geo. II. c. 35. 6 Geo. III. c. 48. 9 Geo. III. c. 41. 13 Geo. III. c. 32.

p Oak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, birch, poplar, alder, latch, maple and hornbeam.

q 1 Hal. P. C. 510. Stra. 1137. r See Vol. II. page 438.

2. The statutes referred to in this paragraph, are not in force in Virginia. See Note, page 33.

Bonds, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larciny 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 larcinies, as the money they were meant to secure. By statute 15 Geo. II. c. 10, 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 pacquet, containing any bank note or other valuable paper particularly specified in the act, or shall steal the same out of any letter or packet, he shall be guilty of felony without benefit of clergy. Or, if he shall destroy any letter or pacquet with which he has received money for the postage, or shall advance the rate of postage on any letter or pacquet sent by the post, and shall secrete the money received by such advancement, he shall be guilty of single felony. Larciny 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 ss, this inhumanity is punished in the same degree as the most atrocious theft 3.

s 8 Rep. 33.

ss Cod. 6, 2, 18.

3. The statutes here referred to, are not in force in Virginia; but some of their provisions have been introduced into our code.

1. By the act of 1796, c. 2. §. 8, (which extends to free persons only) "robbery or larceny of obligations or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money, lottery tickets, paper bills of credit, certificates granted by, or under

Larciny also cannot be committed of such animals, in which there is no property either absolute or qualified; as of beasts that are ferae naturae, and unreclaimed, such as deer, hares, and conies, in a forest, chace, or warren; fish, in an open river or

the authority of this commonwealth, or of the United States, or any of them, shall be punished in the same manner as robbery, or larceny of goods and chattels." See Note, p. 239.

2. It is made felony without the benefit of clergy to steal, or by other means take from the possession or custody of another, any warrant from the register of the land office of this commonwealth, to authorise a survey of waste and unappropriated lands; or any loan office certificate of the United States, or any of them, any warrant of the governor, or other person exercising that function; or any certificate of the auditor for public accounts; or to present, or cause the same to be presented for payment, knowing the same to have been stolen; or to transfer, or present, or cause to be presented to the register for exchange, or to a surveyor for execution, any such warrant of survey. L. V. 1794, c. 133. The punishment, where the offence does not fall within the description of the act of 1796, c. 2. §. 8, is regulated by the act of 1799, c. 58, viz, imprisonment in the penitentiary house at hard labour, or in solitude, for a period not less than one, nor more than ten years.

3. By the act of 1794, c. 6, it is felony without benefit of clergy to steal, or aid in stealing any pump, materials, or goods from any vessel in distress, or to do any thing tending to the immediate loss of such vessel. The punishment is now regulated by the act of 1799, c. 58, as mentioned above in the case of free persons, but remains as before in the case of slaves.

4. By the act for establishing the post office, 5 Cong. c. 149, §. 14 and 15, if any person employed in any department of the general post office, shall secrete, embezzle, or destroy any letter or packet entrusted to him, not containing any paper particularly specified in the act, he shall be fined not exceeding three hundred dollars, or imprisoned not exceeding six months, or both according to the degree of the offence; but if such letter contain any bank note, or other valuable paper particularly specified in the act; or if he shall steal the Same out of any letter or packet, he shall be publicly whipped, not exceeding forty stripes, and imprisoned and kept at hard labour not exceeding ten years. And if any person shall rob any carrier of a mail, he shall, for the first offence, be punished in like manner; and for the second, shall suffer death. Or, if any person shall steal the mail, or any letter or packet out of it, or cut of any post office; or shall, with or without the consent

pond; or wild fowls at their natural libertye. But, if they are reclaimed or confined, and may serve for food, it is otherwise, even at common law: for of deer, so inclosed in a park that they may be taken at pleasure, fish in a trunk, and pheasants or partridges in a mew, larciny 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 inclosed, or in any other inclosed 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. 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 inclosed park, paddock, wood, or other ground, 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 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

t 1 Hal. P. C. 511. Fost. 366.

u 1 Hawk. P. C. 94. 1 Hal. P.C. 511.

of the person having custody of it, take the mail, and open, embezzle, or destroy it, or any letter or packet containing any article or paper of value described in the act, the offender shall be whipped not exceeding thirty lashes, or imprisoned and kept at hard labour not exceeding two years, or both, according to the enormity of the offence. And if any person whatsoever shall secrete, embezzle, or destroy any mail letter before it is delivered, with a design to obstruct the correspondence, or pry into the business or secrets of another, he shall, for every offence, be fined not exceeding one hundred dollars.

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 conies 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 inclosed ground, being private property. Stealing hawks, in disobedience to the rules prescribed by the statute 37 Edw. III. c. 19, is also felony w. It is also said x that, if swans be lawfully marked, it is felony to steal them, 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 domitae naturae, 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, larciny may be committed (3); and also of the flesh of such as are either domitae or ferae

v See Stat. 22 and 23 Car. II. c. 25. w 3 Inst. 98. x Dalt. Just c 156. y Dal. 21. Crompt. 36. 1 Hawk. P. C. 93. 1 Hal. P. C. 507. The King v. Martin, by all the Judges. P. 17 Geo. III.

(3.) Horse-stealing was formerly felony, without benefit of clergy in the principals. L. V. 1794, c. 101. But now every person convicted of horse-stealing, or as accessory thereto before the fact, shall restore the horse to the owner, or pay him the full value, and be imprisoned at hard labour, or in solitude, not less than two, nor more than seven years. L. V. 1796, c. 2. §. 6.

Any person, not being a slave, stealing any hog, shoat, or pig, shall for the first offence be whipped, not exceeding twenty-five lashes, and be fined thirty dollars to the use of the county, and eight dollars to the use of the owner of the hog stolen: for a second offence, he shall stand two hours in the pillory, and have both ears nailed to it, and afterwards cut loose.... the third offence is felony. And the punishment will now be the same as in ether felonies within the benefit of clergy, which are

naturae, when killed z. As 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 zz, yet they are not of such estimation, as that the crime of stealing them amounts to larciny a. 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 b 4.

Notwithstanding however that no larciny 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 larciny to steal it; and an indictment will lie, for the goods of a person unknown c. 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 d. 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 gravecloths be stolen with it e. Very different from the law of the Franks,

z 1 Hal. P. C. 511. zz See Vol. II. page 393. a 1 Hal. P. C. 512.

b See the remarks in page 4. This statute hath now continued sixteen sessions of parliament unrepealed!

c 1 Hal. P. C. 512. d Gravin. l. 3. Sec. 106. e See Vol. II, page 429.

not enumerated in the act amending the penal code. L. V. 1794, c. 98. 1796, c. 2. §. 13.

Slaves guilty of hog-stealing shall, for the first offence, be punished by whipping; for the second, pillory and ears nailed and cut loose; the third offence felony, to which the benefit of clergy is allowed.

4. The statutes referred to in the preceding paragraph, are not in force in Virginia. See Note, page 33.

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 f.

Having thus considered the general nature of simple larciny, I come next to treat of it's punishment. Theft, by the Jewish law, was only punished with a pecuniary fine, and satisfaction to the party injured g. And in the civil law, 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 it's 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

h Petit. LL. Attic l. 7. tit. 5.

f Montesq. Sp. L. b. 30, ch. 19. g Exod. c. xxii.

i Est enim ad vindicanda furta nimis atrox, nec tamen ad refraenanda sufficiens; quippe neque furtum simplex tam ingens facinus est, ut capite debeat plecti; neque ulla poena est tanta, ut at latroainiis[] cohibeat eos, qui nullum aliam artem quaerendi victus habent. (Mori Utopia, edit. Glasg. 1750. pag. 21.) Denique, cum lex Mosaica, quanquam inclemens et aspera, tamen pecunia furtum, haud morte, mulctavit; ne putemus Deum, in nova lege clementiae qua pater imperat filiis, majorem indulsisse nobis invicem saeviendi licentiam. Haec sunt cur non licere putem; quam vere sit absurdum, atque etiam perniciosum reipublicae, furem atque homicidam ex aeque puniri, nemo est (opinor) qui nesciat. (Ibid. 39.)

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 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 Mathew 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 larciny 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 larciny, is only punished by imprisonment or whipping at common law 1, 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 larciny, or the stealing above the value of twelve-pence, which sum was the standard in the time of king Athelstan, eight hundred years ago) is at common law regularly death.

j Utop. pag. 42.

l L. of N. b. 8, c. 3.

n See page 9.

p 1 Hal. P. C. 12. 3 Inst. 53.

r Stat. 13 Geo. III, c. 38.

k ch. 22.

m 1 Hal. P. C. 13.

o Tac. de mor. Germ. c. 12.

q 3 Inst. 218.

Which, considering the great intermediate alteration s in the price of denomination of money, is undoubtedly a very rigorous constitution; and made sir Henry Spelman (above a Century since, when money was at twice it's present rate) complain, that while every thing else was risen in it's nominal value, and become dearer, the life of man had continually grown cheaper t.... It is true that the mercy of juries will often make them strain a point, and bring in larciny 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 larciny to the value of thirteen pence 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 larciny the benefit of clergy is taken away by statute: as from horse-stealing in the principals, and accessories both before and after the fact w 5; theft by great and notorious thieves in Northumberland and Cumberland x; taking woolen cloth from off the tenters y, or linens, fustains, callicoes or cotton goods, from the


s In the reign of king Henry I, the stated value at the exchequer, of a pasture fed ox was one shilling: (Dial. de Scacc. l. 1. Sec. 7.) which if we should even suppose to mean the solidus legalis mentioned by Lyndewode (Prov. l. 3. c. 13. See Vol. II, p. 509.) or the 72d part of a pound of gold, is only equal to 13s. 4d. of the present standard.

t Gloss. 350. u 2 Inst. 189.

w Stat. 1 Edw. VI. c.12. 2 & 3 Edw. VI. c. 33. 31 Eliz. c. 12.

x Stat. 18 Car. II. c. 3.

y Stat. 22 Car. II. c. 5. But, as it sometimes is difficult to prove the identity of the goods so stolen, the onus probandi with respect to innocence is now by statute 15 Geo. II. c. 27, thrown on the persons in whose custody such goods are found: the failure whereof is, for the first time a misdemesnor punishable by forfeiture of the treble value; for the second, by imprisonment also; and the third time it becomes a felony, punished with transportation for seven years.

5. See Note, page 236.

place of manufacture z; (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, 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; plundering vessels in distress, or that have suffered shipwreck c: stealing letters sent by the post d; and also stealing deer, fish, hares, and conies under the peculiar circumstances mentioned in the Waltham black act c 6. Which additional severity is owing to the great malice and mischief of the theft in some of these instances; and, in others, to 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 cloaths 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 larciny 7.

z Stat. 18 Geo. II. c. 27. Note, in the three last cases an option is given to the judge to transport the offender; for life in the first case, for seven years in the second, and for fourteen years in the third; in the first and third cases instead of sentence of death, in the second after sentence is given.

a Stat. 14 Geo. II, c. 6. 15 Geo. II, c. 34. See Vol. I. p. 88.

b Stat. 24 Geo. II, c. 45.

c Stat. 12 Ann. st. 2. c. 18. 26 Geo. II, c. 19.

d Stat. 7 Geo. III, c, 50. e Stat. 9 Geo. I, c. 22.

f Ff. 47. t. 14. g Ff. 47. t. 17.

h Pott. Antiq. b. 1. c. 26. i Stiernh. de jur Goth. l. 3. c. 5.

6. The statutes mentioned in this paragraph are not in force in Virginia. See Note, page 33.

7. Antecedent to the late reform in our penal code the benefit of clergy was allowed in all cases of simple larceny, except horse-steal-

Mixed, or compound larciny 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

ing. And the law remains unaltered, with respect to slaves. See L. V. 1794, c. 47.

But now, every free person convicted of simple larceny (except it be horse-stealing) to the value of four dollars and upwards, or as accessary thereto before the fact, shall restore the goods stolen, or pay the full value thereof to the owner; and shall suffer imprisonment in the penitentiary house, at hard labour, or in solitude, for a period not less than one, nor more than three years. Simple larceny, under the value of four dollars, is punishable in like manner: but for a period not less than six months, nor more than one year.

Larceny of bonds, &c. is punishable in the same manner. L. V. 1796, c. 2. §. 6, 7, 8.

And, by the act of 1802, c. 16. All offences, the punishment of

which does not by law, at present, exceed a confinement in the penitentiary for a term of one year, (under which description of felonious offences, petty larceny, or the stealing of goods or money under the value of four dollars, seems, alone, to be comprehended,) shall be tried in the court of the county wherein the offence is committed; and for that purpose the examining courts shall take the recognizance of the person accused, to appear at the next quarterly term of the county, or corporation, or in case of refusal or inability to give security, may commit him to prison, until discharged by due course of law. And the mode of trial shall be by indictment found by the grand jury of such county or corporation, according to the rules adopted in the district courts, and by a petit jury summoned for that purpose instanter, and qualified as venire men to serve in the district courts. And the party upon conviction may be punished by stripes, not less than ten, nor more than forty, or by confinement in the penitentiary, not more than twelve, nor less than six months, to be ascertained by the verdict of the jury, at the election of the convict, to be made before the jury retire from the bar. And for a second offence, he shall undergo a confinement in the penitentiary, not less than one, nor more than two years.

And, by the same act, when any convict shall be condemned to confinement in the penitentiary for a term longer than one year, his estate, both real and personal, shall be committed by the court of the

county in which the property lies, to the care of some person to be fixed on by the court, who shall be trustee for him until his discharge from confinement; who shall give bond and security for his conduct,

therefore of larciny from the house, and then of larciny from the

person.

1. Larciny from the house, though it seems (from the considerations mentioned in the preceeding chapter j) to have a higher degree of guilt than simple larciny, yet 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 shewn them to have gradually arisen from our improvements in trade and opulence) the benefit of clergy is taken from larcinies committed in an house in almost every instance; except that larciny of the stock or utensils of the plate-glass company from any of their houses, &c. is made only 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

j See pag. 223. 1 Barr. 375, &c.

k 1 Hawk. P. C. 98.

m Stat. 13 Geo. III , c. 38.

and stand in every respect in the same situation as an administrator," and may sue and be sued, in like manner. He shall allow a sufficient maintenance out of the estate of the convict, for his wife and family if he hath any; and in every case the wife shall be entitled to the same proportion of his estate,"as if he had died intestate: and the court may make him a reasonable compensation for his trouble.

To this head we may refer the stealing of slaves which was formerly felony without benefit of clergy. L. V. 1794, c. 103. §. 28, but is now punishable by imprisonment in the penitentiary house at hard labour, or in solitude, for a period not less than three, nor more than eight years. L. V. 1798, c. 6.

Larceny committed on the high seas, or within any of the places under the sole and exclusive jurisdiction of the United States, is punishable by fine not exceeding the fourfold value of the thing stolen, and whipping not exceeding thirty nine stripes; and the counsellors aiders and abettors, knowing of and privy to the offence, are punishable in the same manner. L. U. S. 1 Cong. 2 Sess. c. 9. §. 16.

domestic aggravations of larciny; viz. First, in larcinies above the value of twelvepence, 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 day time 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 day time (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. Secondly, in larcinies to the value of five shillings, committed, 1. By breaking any dwelling-house, or any out-house, shop, or warehouse thereunto belonging, in the day time, 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 merchandize 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: which likewise extends to such as assist, hire, or command the offence to be committed. Lastly, in larcinies to the value of forty shillings in a dwelling-house, or its outhouses, 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 8. This also extends to those who aid or assist in the commission of any such offence 9.

n Stat. 23 Hen. VIII, c. 1. 1 Edw. VI, c 12. 1 Hal. P. C. 518.

o Stat. 5 and 6 Edw. VI, c. 9. 1 Hal. P. C. 522.

p Stat. 3 and 4 W. and M. c. 9. q Ibid.

r Stat. 39. Eliz. c. 15. s Stat. 3 and 4 W. and M. c. 9.

t See Foster. 78. Barr. 379. u Stat. 10 and 11 W. III, c. 23.

v Stat. 12 Ann. stat. 1. c 7.

8. The statutes here referred to are not in force in Virginia. See Note page 33.

9. The act of 1794, c. 47, takes away the benefit of clergy from the principals, in the case of the felonious taking of any goods or chattels out of any church, chapel or meeting-house, belonging thereto; or of robbing any person in his dwelling-house or dwelling-place (which

2. Larciny 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 knowlege, was debarred of the benefit of clergy, so early as by the statute 8 Eliz. c. 4. But then it must be such a larciny, as stands in need of the benefit of clergy, viz. of above the value of twelve-pence; 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 10. This severity (for a

w 1 Hawk. P. C. 98. The like observation will certainly hold in the cases of horsestealing, (1 Hal. F. C. 531.) thefts in Northumberland and Cumberland, and stealing woolen cloth from the tenters; and possibly in such other cases where it is provided by any statute that simple larceny, under certain circumstances, shall be felony without benefit of clergy.

perhaps may include a booth, or tent,) the owner or dweller in the same house or dwelling-place his wife, his children, or servants then being within, and put in fear and dread by the same; or of the felonious breaking of any dwelling-house by day, and taking away of any goods or chattels, being therein, the owner or any person being therein and put in fear. The accessories before the fact, are likewise deprived of their clergy, in the second of these cases; but not in the first, or third.

And by the act of 1794, c. 109, the felonious breaking any warehouse or store-house, either by night or by day, and taking therefrom money or goods to the value of four dollars, or more, is felony without benefit of clergy, in the principals, and in those who aid assist counsel or command them so to do.

By the act of 1796, c. 2. Every free person convicted of robbery, or burglary, or as accessory thereto, before the fact, shall restore the thing robbed or taken, or pay the full value thereof to the owner, and be imprisoned in the penitentiary house, at hard labour, or in solitude not less than three nor more than ten years.

Accessories after the fact, in all these cases being entitled to the benefit of clergy, their punishment is regulated by the thirteenth section of the act last mentioned; which prescribes imprisonment in the penitentiary house, at hard labour, or in solitude, not less than six mouths, nor more than two years.

10. The statute mentioned in this paragraph is not in force in Virginia. See Note, page 33. The

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.

Open and violent larciny 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 misdemesnor, and punishable with fine and imprisonment; till the 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. 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

x Ff, 47, 11, 7. Pott. Antiq. 1. 1. c. 26.

y 1 Hawk. P. C. 95. z 1 Hal. P. C. 532.

a 1 Hal P. C. 5,33. b Comyns. 478. Stra. 1015.

c 1 Hawk. P. C. 97.

The offence of privately sealing from the person is within the benefit of clergy, under the act of 1794, c. 47.

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 robberies from other larcinies. 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 twelve pence. 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, 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

h 1 Hawk. P. C. 96.

d Ff. 4, 2, 14. Sec. 13. e 1 Hal. P. C. 534. f Trin. 3 Ann. by all the judges. g Fost. 128.

* Mr. J. Ashhurst is reported to have thus expressed himself in delivering the opinion of the judge in Willan's case, Leach 232. "The true definition of robber) is the stealing, or taking from the person, or in the presence of another, property of any amount, with such a degree of force or terror, as to induce the party unwillingly to part with his property; and whether the terror arises from real or expected violence to the person, or from a sense of injury to the character, the law makes no kind of difference; for to most men the idea of losing their fame and reputation is equally, if not more terriric than the dread of personal injury. The principal ingredient in robbery is a man's being forced to part with his property; and the judges are unanimously of opinion .that upon the principles of law, and the authority of former decisions, a threat to accuse a man of having committed the greatest of all crimes, is a sufficient force to constitute the crime of robbery by putting in fear.".... Christian.

another, neither shall this subterfuge avail him. But it is doubted i, whether the forcing a higler or other chapman, to sell his wares, and giving him the full value of them, amounts to so heinous a crime as robbery *.

This species of larciny 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 foot-path, was not punished with death k; but was open to the benefit of clergy, till the statute 3 and 4 W. and M. c. 9, which takes away clergy from both principals and accessories before the fact, in robbery wheresoever committed 11.

i 1 Hawk. P. C. 97.

k 1 Hal. P. C. 535.

* This distinction has been frequently admitted by the judges in prosecutions for robbery, viz. that if any thing is snatched suddenly from the head, hand, or person of any one without a struggle on the part of the owner, or without any evidence of force or violence being exerted by the thief, it does not amount to robbery. But if any thing is broken or torn in consequence of the sudden seisure, it would be evidence of such force as would constitute a robbery; as where part of a lady's hair was torn away by snatching a diamond pin from her head, and an ear was torn by pulling off an ear-ring, each of these cases was determined to be a robbery. Leach, 238.... Christian.

11. The statutes relating to the offence of robbery are not in force in Virginia. Sec Note, page 33.

The act of 1794, c. 47, takes away the benefit of clergy, both from principals and accessories before the fact, in the case of robbing any person in, or near any highway. Accessories after the fact are entitled to the benefit of clergy.

The act of 1796, c. 2, makes no distinction between the several kinds of mixed, or compound larceny; but declares in general terms, that every free person convicted of robbery, or burglary, or as accessary thereto before the fact shall restore the thing robbed or stolen, or pay the full value thereof to the owner, and suffer imprisonment in the penitentiary house, at hard labour, or in solitude for a period not less than three, nor more than ten years.

The offence of robbery, being coupled with burglary, in the same sentence, leaves reason to conclude, that under that term the legislature intended to comprehend every species of mixed, or compound larceny whatsoever.

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. 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 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, Westmorland, 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 and 23 Car. II, c. 7, maliciously, unlawfully, and willingly, in the night-time, to burn or cause to be burnt or destroyed, any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns; 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. By statute 4 and 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 Ann. 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 clergy12. And by statute 12 Ann. 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. 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 cloaths 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 of the Indian fashions, prejudicial to their own manufactures, made it their usual practice to deface them; either by open outrage, or by privily cutting, or casting aqua fortis in the streets upon such as wore them. By statute 9 Geo I, c. 22, 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 larciny m, it is farther 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 and 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

1 3 Inst. 197.

m See page 144, 208, 235, 240.

12. L. V. 1794, c. 6, Accordant. The punishment in case of a free person, is now imprisonment in the penitentiary house at hard labour and solitary confinement, not less than one, nor more than ten years. L. V. 1799, c. 58, Sessions Acts.

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. 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, or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or delph of coal. By statute 11 Geo. II, c. 22, to use any violence in order to deter any person from buying corn or grain; to seise any carriage or horse carrying grain or meal to or from any market or sea-port: or to use any outrage with such intent; or to scatter, take away, spoil, or damage such grain or meal; is punished 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. 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. By statutes 6 Geo. III, c. 36 and 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 day time, and even for the first if at night, the offender shall be guilty of felony, and liable to transportation for seven years. 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; or any fences for inclosures, pursuant to any act of parliament, is made single felony, and punishable with transportation for seven years, in the offender, his advisers and procurers. 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

n Ff 47, 7, 2.

intent to steal, cut, or destroy, any of their stock or utensils, or shall wilfully and maliciously cut or destroy the same.13 And these are the principal punishments of malicious mischief.

III. Forgery, 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. 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 other securities p: of

o Inst. 4, 18, 7.

p Stat. 8 & 9 W. III. c. 20. §. 36. 11 Geo. l. c. 9. 12 Geo. l. c. 32. 15 Geo. II. c. 13. 13. Geo. III. c. 79.

13. The statutes referred to in this paragraph are not in force in Virginia. See note page 33.

bills of credit issued from the exchequer q; of south sea bonds, &c.r; of lottery tickets or orders s; of army or navy debenters t; of East India bonds u; of writings under seal of the London, or royal exchange assurance w; of the hand of the receiver of the pre-fines 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 tranfer 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; 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: 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; and the forging of any marriage register or licence d: all which are by distinct acts of parliament made felonies without benefit of clergy. By statutes 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. By statute 12 Geo. III, c. 4a, certain frauds on the stamp-duties, therein described, principally by using the same stamps more than once,

q See the several acts for issuing them.

r Stat. 9 Ann. c. 21. 6 Geo. I, c. 4 and II. 12 Geo. I. c. 32.

s See the several acts for the lotteries.

t Stat. 5 Geo. I, c. 14. 9 Geo. I, c. 5. u Stat. 12 Geo. I, c. 32.

w Stat. 6 Geo. I, c. 18. x Stat. 32 Geo. II. c. 14.

y Stat. 12 Geo. I, c. 32.

z Stat. 8 Geo. I, c. 22. 9 Geo. I, c. 12. 31 Geo. II, c. 22. Sec. 77.

a Stat. 4 Geo. II. c. 10. 9 Geo. III. c. 30.

b Stat. 4 Geo. II. c. 18. c See the several stamp acts.

d Stat. 26 Geo. II. c. 33.

are made single felony, and liable to transportation for seven years. And the same punishment is inflicted by statute 13 Geo. III, c. 38, 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, indorsement 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 14. So that, I believe, through the number of these general and special provisions, there is now hardly a

e Stat. 51 Geo. II. c. 22. Sec. 78.

* [And by statute 24 Geo. III. Sess. 2. c. 37. if any person shall forge the hand-writing of any person, in the superscription of any letter or packet to be sent by the post, in order to avoid the payment of the duty of postage, or shall forge the date upon the superscription of any letter, or shall write and send by the post any letter or packet, the superscription or cover whereof shall be forged, or the date upon such cover altered in order to avoid payment of the duty of postage, knowing the same to be forged, he shall be guilty of felony, and shall be transported for seven years.] The penalty for this offence in the United States is fifty dollars, L. U. S. 5. Cong. c. 149. §. 18.

14. Although the statutes referred to, under this head, are not in force in Virginia, yet have we adopted some of their provisions.

case possible to be conceived, wherein forgery, that tends to defraud, whether in the name of a real or fictitious person f, is not made a capital crime *.

f Fost. 116, &c.

* It has frequently been determined that drawing, indorsing or accepting a bill of exchange in a fictitious name is a forgery. Bolland's case, &c. Leach, 78, 159, 192. It is also forgery to fabricate a will by counterfeiting the name of a pretended testator, who is still living. Cogan's case, Ibid. 355.

If a person puts his own name to an instrument, representing himself to be a different person of that name with an intent to defraud, he is guilty of forgery. 4 T. R. 28.

A bill of exchange may be produced in evidence against a prisoner prosecuted for the forgery of it, and he may be convicted upon the usual evidence of the forgery, though it has never been stamped pursuant to the stamp acts. Hawkeswood's case, Ibid. 221. Christian.

By the act of 1794, c. 133, amended by c. 171. If any person shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited; or willingly act or assist in the false-making, forging, or counterfeiting any deed, will, testament, bond, writing obligatory, bill of exchange, promissory note for the payment of money, or tobacco, or other valuable thing, or any acquittance, or receipt either for money or tobacco, or other valuable thing, or any endorsement or assignment of any bond, writing obligatory, bill of exchange, promissory note for the payment of money, or tobacco, or other valuable thing, with intention to defraud any person whatsoever, or any corporation; or shall utter or publish any such false deed or instrument, as true, with the like intention, knowing the same to be false, forged, or counterfeited; every such person, upon conviction, shall suffer death without benefit of clergy.

If any person within this commonwealth shall forge or counterfeit, alter or erase any certificate,or warrant issued, or to be issued, under the authority of the congress or the legislature of this state, for the payment of money, or aid or assist therein, or demand payment thereof, or transfer the same, knowing it to be forged, altered, or erased; or any other certificate whatever for the purpose of obtaining a settlement of money from persons authorised for that purpose, as beforementioned, the offender on conviction shall suffer death, without benefit of clergy.

In like manner, the forging, counterfeiting, altering or erasing the stamp or. receipt of any inspector of flour, hemp, or tobacco, or aiding

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 our distribution has led us to consider. We have before examined the nature of all

or assisting therein, or passing or tendering the same in payment or exchange, knowing the same to have been forged, &c. or having any forged stamp or receipt of an inspector of tobacco, in his possession, knowing the same to have been forged, &c. without making a discovery to a justice of the peace, within five days: or exporting any hogshead stampt with a counterfeit stamp, or receiving or demanding tobacco of any inspector upon a forged, or false receipt, knowing it to be so, is also felony without benefit of clergy, in all concerned.

And moreover, the counterfeiting, altering or erasing any land warrant from the office of the Register of this commonwealth; or the seal of the register of the land office, is likewise felony without the benefit of clergy, in all the parties therein concerned. L. V. 1794, c. 133. The punishment in all these cases is imprisonment in the penitentiary house, not less than one, nor more than ten years, at hard labour or solitary confinement, by virtue of the acts of 1796, c. 2, and 1799, c. 58.

And by the act of 1796, c. 2. §. 9, if any person shall be concerned in printing, signing, or passing any counterfeit notes of the bank of Alexandria, or of the United States, knowing them to be such; or altering any genuine notes of either of the said banks, he shall be imprisoned in the penitentiary house, as above mentioned, not less than four, nor more than fifteen years: and be fined by the court, not exceeding one thousand dollars.

By the laws of the United States, the falsely making, altering, forging, or counterfeiting, or aiding or assisting, in falsifying any certificate, indent, or other public security of the United States, or uttering the same, with intent to defraud, any person, is punishable with death, in all parties therein concerned. L. U. S. 1 Cong. 2 Sess. c. 9. §. 14. Frauds upon the bank of the United States under an act, (the constitutionality of which is questionable,) are punishable by imprisonment at hard labour, not less than three years, nor more than ten years; or by imprisonment not exceeding ten years, and fine, not exceeding five thousand dollars. But nothing in the act contained shall be construed to deprive the courts of the individual states, of a jurisdiction under the laws of the several states, over the offences declared punishable by that act. L. U. S. 5 Cong. c. 78.

See also page 175, note 14, as to the offence of counterfeiting certificates of emancipation, or copies thereof; and the acts of 1795, c. 11, and 1797, c. 4, there referred to.

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 consequences, against God and his holy religion. And these several heads comprehend the whole circle of crimes and misdemesnors, with the punishment annexed to each, that are cognizable by the laws of England.

To this head likewise we may refer the offence of getting money, goods, or chattels from any person, by colour and means of any false token, or counterfeit letter, made in any other person's name; which subjects the offender, on conviction, to imprisonment, not exceeding one year, and sitting upon the pillory, as the court shall appoint. L. V. 1794, c. 45.

CHAPTER THE EIGHTEENTH.

OF THE MEANS OF PREVENTING OFFENCES.

WE 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 misdemesnors. 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 it's 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 and 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 misdemesnors: but there also it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment.....

a Beccar. ch. 41.

And, indeed, if we consider all human punishments 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 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 decenaries or frankpledges; 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 sureties, in a recognizance or obligation to the king, entered on record, and taken in some court or by some judicial officer: whereby the parties acknowlege 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 party shall appear in court on such a day, and in the mean time shall keep the peace; either

b See pag. 11.

c See Vol. I. pag. 114.

d cap. 18.

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, 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, may demand such security according to their own discretion; or it may be granted at the request of any subject, upon due cause shewn, 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 praemunire, 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 king's bench or chancery: 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

g F. N. B 80. 2 P. Wms 202

e See Vol. I. p. 350. f 1 Hawk. P. C. 126

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 acknowlegements 1.

3. A recognizance may be discharged, either by the demise of the king, to whom the recognizance is made 2; 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, assises, 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 j.

h 1 Hawk. P. C. 127. j 1 Hawk. P. C. 129.

i 2 Stra. 1207.

1. The judges of all the superior courts in Virginia, are conservators of the peace throughout the commonwealth; and the justices of the peace, in each county and corporation, within their respective counties and corporations; and all of them, within their respective limits, have power to demand of such persons as are not of good fame, sufficient security and mainprise of their good behaviour. L. V. 1794, c. 69.

And, by the laws of the United States, the judges of the supreme court, and of the several district courts of the United States, and all judges and justices of the courts of the several states, having authority by the laws of the United States to take cognizance of offences against the constitution and laws thereof, shall respectively have the like power and authority to hold to security of the peace, and for good behaviour, in cases arising under the constitution and laws of the United States, as may or can be lawfully exercised by any judge, or justice of the peace of the respective states, in cases cognizable before them. L. U. S. 5 Cong. c. 100.

2. Quere, as to this point? Suits drought in the name of the governor, or treasurer of the commonwealth, shall not abate by the death, resignation, or removal from office, of either. L. V. 1798, c. 19. Sessions Acts.

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 shew 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 or 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 the peace in his presence; and all such persons as, having been before bound to the peace, have broken it and forfeited their recognizances k. 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 shew 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 farther swear, that he does not require such surety out of malice, or for mere vexation l. 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 m.

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

k 1 Hawk. P. C. 126. l Ibid. 127. m Ibid. 128.

peace; or, more particularly, by any one of the many species of offences 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 n. Neither are mere reproachful words, as calling a man a knave or liar, any breach of the peace, so as to forfeit one's recognizance (being looked upon to be merely the effect of unmeaning heat and passion) unless they amount to a challenge to fight o.

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; whoremasters; the putative lathers of bastards; cheats; idle vagabonds; and other persons, whose misbehaviour may reasonably bring them within the general words of the statute, as persons not of good fame: an expression, it must be owned,

n 1 Hawk P. C. 131.

o Ibid. l. 180.

of so great a latitude, as leaves 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 p 3

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 q: 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.

p 1 Hawk. P.C. 132.

q Ibid 133

3. See Note 1, page 254.

Any two justices of the peace, and, by consequence, any two judges of the general court, under the act of 1797, c. 2. §. 7,) may cause to come, or be brought before them, every person within their respective limits, whom they shall have just cause to suspect to have no visible estate, profession, or calling, to maintain himself by, but, for the most part, supporting himself by gaming; and, if such person shall not make it appear to such justices, that the principal part of his expences is not maintained by gaming, they shall require of him sufficient security for his good behaviour for twelve months, and may commit him till he doth so: and if he give security, and afterwards play or bet for any money, &c. within the time, he shall forfeit his recognizance. L. V. 1794, c. 96. §. 6.

Vagrants, within the limits of any corporation, may be apprehended by warrant of any magistrate of the corporation; and if, upon examination before two magistrates of the corporation, they shall appear to come within the description of vagrants, they may be sent to the work-house for any time not more than three months; or, if no workhouse in the corporation, they may be hired out to labour for the same space of time. Vagrants found in counties may be dealt with in this last mode, by order of a single magistrate, upon application from any overseer of the poor. L. V. 1794, c. 102. §. 26, 31, 32, and. c. 96,

§. 11.

CHAPTER THE NINETEENTH

OF COURTS OF A CRIMINAL JURISDICTION.1

THE 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,

1. See Appendix, Note C.

I thought it best to begin with the lowest, and so ascend gradually to the courts of appeal, or those of the 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 2. 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 misdemesnors b: a peer may be impeached

a 1 Hal P. C. 150.

b When, in 4 Edw. III, the king demanded the earls, barons, and peers, to give judgment against Simon de Hereford, who had been a notorious accom-

2. Neither the congress, nor any of the state legislatures have power to pass any bill of attainder. C. U. S. art. 1. §. 9, 10.

for any crime. 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 an 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 misdemesnors 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 most 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


plice in the the treasons of Roger earl of Mortimer, they came before the king in parliament, and said all with one voice, that the said Simon was not their peer; and therefore they were not bound to judge him as a peer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect of the notoriety and heinousness of his crimes, to receive the charge and to give judgment against him, the following protest and proviso was entered in the parliament roll. "And it is assented and accorded by our lord the king, and all the great men, in full parliament, that albeit the peers, as judges of the parliament, have taken upon them in the presence of our lord the king to make and render the said judgment; yet the peers who now are, or shall be in time to come, be not bound or charged to render judgment upon others than peers; nor that the peers of the land have power to do this, but thereof ought ever to be discharged and acquitted, and that the aforesaid judgment now rendered be not drawn to example or consequence in time to come, whereby the said peers may be charged hereafter to judge others than their peers, contrary to the laws of the land, if the like case happen, which God forbid." (Rot. Parl. 4 Edw. III, n. 2 & 6. 2 Brad. Hist. 190. Selden. judic. in parl. ch. 1 ) c 1 Hal. P. C. 350.

d Lords Journ. 12 May 1679. Com. Journ. 15 May 1679. Fost. 142, &c. e Tacit. de mor. Germ. 12. f See Vol. I. page 269.

be guilty of such crimes, as the ordinary magistrate either dares 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 it's 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 and 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 3.

g Montesq. Sp. L. xi. 6.

h Com Journ. 5 May, 1679.

i See ch: 31.

3. The senate of the United States constitutes a court of impeachments in cases arising under the federal constitution; and the general court of the commonwealth of Virginia, constitutes the court of impeachment in all cases arising under the state constitution and laws, except, when a judge of that court may happen to be impeached, in which case the trial is to be had in the court of appeals of this commonwealth.

William Blount, a senator of the United States, who was impeached of high crimes and misdemeanours, was admitted to appear by his counsel. And the senate moreover resolved in that case, that all questions arising in the course of the trial should be decided with closed doors; the ayes and noes to be entered on the journal; the doors to be

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 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 it 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 assises 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

k 4 Inst. 58. 2 Hawk. P. C. 5. 421. 2 Jon. 54.

l 1 Bulstr. 198. m Pryn. on 4 Inst. 46.

n Quand un seigneur de parlement serra arrem de treason ou felony, le roy par es lettres patents fera un grand et sage seigneur d'estre le grand seneschal d'Angleterre; qui.. doit faire un precept..... pur faire venir xx seigneurs, ou xviii, &c. (Yearb. 13 Hen. VIII. II.) See Staudf. P. C. 152. 3 Inst. 28. 4 Inst. 59. 2 Hawk. P. C. 5. Barr. 234.

then opened, and the result made known. That if any senator wished that any question be asked of a witness, it should be put by the president. See also, Appendix, Note C.

By the law of the commonwealth, it is directed that process in case of impeachment shall be summons, attachment and distress. That a copy of the articles shall be delivered to the party accused whenever he shall require it; that all facts put in issue shall be tried by a special jury from the senatorial district in which the party shall reside; composed of twenty-four jurors summoned for that purpose whose number shall be reduced to twelve; the prosecutor for the state, and the party accused, alternately striking one. That the benefit of challenge shall be allowed the party, for good cause either before, or after the names are struck. That he shall have the benefit of counsel without petitioning the court. And that no impeachment shall be tried during a session of the general assembly, unless the party accused shall request it. A person found guilty on impeachment shall be either forever disabled to hold any office under the commonwealth, or removed from such office, pro tempore, or subjected to such pains or penalties as any act of the general assembly may direct. L. V. 1794, c. 72. C. V. Art. 16.

bench, and the judges have power to allow it; in order to prevent the trouble of appointing an 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 Angliae. 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 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: which threw a monstrous weight of power into the hands of the crown, and this it's great officer, of selecting only such peers as the then predominent party should most approve of. And accordingly, when the earl of Clarendon fell into disgrace with Charles II, there 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

o Kelynge 56.

p Carte's life of Ormonde. Vol. II.

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 chairman 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 it's 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.

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 bishopricks, 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

q Fost. 141. r State Trials, Vol. IV. 214, 232, 3.

s Fost. 139.

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 cęteri 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 regulates the proceedings in that court, as well as in the court of parliament, yet it never intended to new-model or alter it's 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 trials of popish lords, or 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 husband4.

t Lords Journ. 15 May, 1679. u Fost. 248.

w Bro. Abr. t. Trial. 142.

4. There being no peers in the United States, it is almost unnecessary to observe that there is no court, similar in it's constitution to that of the lord high steward; or to the high court of parliament, as a criminal court.

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 misdemesnor or breach of the peace. 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. 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 commissions of oyer and terminer, and general gaol delivery, are at once absorbed and determined ipso facto: "in the same manner as by the old Gothic and Saxon constitutions, "jure vetusto obtinuit, quievisse omnia inferiora judicia, dicente jus rege z.

Into this court of king's bench hath reverted all that was good and salutary to the jurisdiction of the court of star-chamber, camera stellata a: which was a court of very antient ori-

x 4 Inst. 70. 2 Hal. P. C. 2. 2 Hawk. P. C 6.

y See Vol. III. p. 41, z Stiernhook. l. 1. c. 2.

a This is said (Lamb. Arch. 154,) to have been so called, either from the Saxon word sdeopan to steer or govern; or from its punishing the crimen stellionatus, or cosenage; or because the room wherein it sate, the old council chamber of the palace of Westminster, (Lamb, 148,) which is now converted into the lottery-office, and forms the eastern side of new palace-yard, was full of windows; or (to which sir Edward Coke, 4 Inst. 66, accedes) because haply the roof thereof was at first garnished with gilded stars. As all these are merely conjectures, (for no stars are now in the roof, nor any are said to have remained there so late as the reign of queen Elizabeth) it may be allowable to propose another conjectural etymology, as plausible perhaps as any of them. It is well known that, before the banishment of the Jews under Edward I, their contracts or obligations were denominated in our antient records starra or starrs, from a corruption of the Hebrew word, shetar, a covenant. (Tovey's Angl. judaic. 32. Selden. Tit. of Hon. ii. 34. Uxor. Ebraic. i. 14.) These starrs, by an ordinance of Richard the first, preserved by Hoveden, were commanded to be enrolled and deposited in chests under three keys in certain places; one, and the most considerable of which was in the king's exchequer at Westminster: and no starr was allowed to be valid, unless it were found in some of the said reposito-

ginal b, but new-modelled by statutes 8 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 misdemesnors, 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 profiteth, 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 reasons it was finally abolished by statute 16 Car. I, c. 10, to the general joy of the whole nation d 5.

ries. (Memorand. in Scacc' P. 6 Edw. I. prefixed to Maynard's year-book of Edw. II. fol. 8. Madox Hist. Exch. c. vii. Sec.4, 5, 6.) The room at the exchequer, where the chests containing these starrs were kept, was probably called the starr-chamber; and, when the Jews were expelled the kingdom, was applied to the use of the king's council, sitting in their judicial capacity. To confirm this, the first time the star-chamber is mentioned in any record, it is said to have been situated near the receipt of the exchequer at Westminster: (the king's council, his chancellor, treasurer, justices; and other sages, were assembled en la chambre des steilies pres la resceipt al Westminster. Claus. 41 Edw. III. m. 13 ) For in process of time, when the meaning of the Jewish starrs was forgotten, the word star-chamber was naturally rendered in law-french, la chaumbre des esteilles, and in law-latin camera stellata; which continued to be the stile in latin till the dissolution of that court.

b Lamb. Arch. 156. c Hist. of Reb. Book 1 and 3.

d The just odium into which this tribunal had fallen before it's dissolution, had been the occasion that few memorials have reached us of it's nature, jurisdiction, and practice; except such as, on account of their enormous oppression,

5. The general court of Virginia, seems by the constitution to have been intended to be the supreme depositary of criminal jurispru-

4. 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 marshall only, is also a criminal court, when held before the lord high constable of England, jointly with the earl marshall. 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 it's 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 6.

5. The high court of admiralty h, held before the lord high admiral of England, or his deputy, stiled 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

are recorded in the histories of the times. There are however to be met with some reports of it's proceedings in Dyer, Croke, Coke, and other reporters of that age, and some in manuscript, of which the author hath two; one from 40 Eliz. to 13 Jac. I. the other for the first three years of king Charles: and there is in the British Museum (Harl. MSS. Vol. I. No. 1226) a very full, methodical, and accurate account of the constitution and course of this court, compiled by William Hudson, of Gray's Inn, an eminent practitioner therein; and a short account of the same, with copies of all it's process, may also be found in 18 Rym. Foed. 192, &c.

c 4 Inst. 123. 2 Hawk. P. C. 9. g Duck de authorit. jur. civ.

f See Vol. III. page 68. h 4 Inst. 134, 147.

dence, in this state. But it's powers with some few exceptions, are now distributed among the district courts, which are, properly speaking, branches of it only. See Note 1, of this chapter. Appendix, Note C.

6. There is no court similar to this, either in the state or federal government.

or extent of any English county; and by statute 15 Ric. II, c. 2, 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 Glocester, 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 punishment: 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 the 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 London7.

7. By the articles of confederation, first concluded between the United States of America; congress was invested with power of appointing courts for the trial of piracies, and felonies committed on the high-seas. Art. 9.

The same power was continued by the constitution, and congress have accordingly established district courts, for the trial of lesser offences, committed on the high seas, where no other punishment than whipping not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is

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,

6, 7. The courts of oyer and terminer, and 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 assises, the judges sit by virtue of five several authorities: two of which, the commission of assise and its attendant jurisdiction of nisi 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 assises are held, are bound fay 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 know-

i Inst. 162, 168. 2 Hal. P. C. 22. 32. 2 Hawk. P. C. 14, 23.

k See Vol. III. page 60.

1 2 Hal. P. C. 39. 2 Hawk. P. C. 28.

m See Vol. I. page 351.

to be inflicted. And circuit courts which have concurrent jurisdiction with the district courts, of the crimes and offences, cognizable therein; and exclusive cognizance of all crimes and offences, (including piracies and felonies committed on the high seas) cognizable under the authority of the United States, except where that act, or some other law of the United States, may otherwise direct. And by the constitution of the United States, the trial of all crimes, except in case of impeachment, shall be by jury. C. U. S. Art. 3. Sec. 2. L. U. S. 1 Cong. 1 Sess. c. 20. Sec. 9, 11.

lege 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 misdemesnors.... 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 assises; for they must first inquire, by means of the grand jury or inquest, before they are impowered 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 excellence. 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 assise 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 misdemesnors, than in matters of property and disputes between party and

n See Appendix, Section 1.

o Ibid.

p 2 Inst. 43.

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.

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 saint Thomas the martyr, or the seventh of July. 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 courts of king's bench or common pleas, or one of the judges of assise. And, therefore murders, and other capital felonies, are usually remitted for a more solemn trial to the assises. 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 misdemesnors, against the public or commonwealth, not amounting to felony; and especially, offences relating to the game, highways, ale-houses, bastard children, the settlement and provision for the poor, vagrants, servants' wages, apprentices, and popish recusants f. Some of these are proceeded upon by indictment; and others, in a summary way by

q 4 Inst. 170. 2 Hal. P. C. 42. 2 Hawk. P. C. 32. r 4 Mod. 379. Salk. 406. Lord Raym. 1144. s See Lambard eirenarcha and Burn's Justice.

8. The powers of the state district courts, except that they are in general even more extensive, may be compared to those of the courts of oyer and terminer, and general gaol delivery, in England. See Note 1, of this chapter.

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 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 s) 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 t.

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 petty session, by a few justices, for dispatching smaller business in the neighbourhood between the times of the general sessions; as, for licensing ale-houses, passing the accounts of the parish officers, and the like 9.

s b. 4. c. 3.

t Stat. 37 Hen. VIII. c. l. 1 W. and M. st. 1. c. 21.

9. The powers of the county and corporation courts in Virginia at their quarterly sessions, except, that they have not power to try any free person, accused of any crime, the punishment of which heretofore extended to the loss of life or member, may in general, be compared to those of the court of general quarter sessions of the peace, in England. See note 1 of this chapter. L. V. 1794, c. 67. § 5. c. 73. § 2. c. 74. § 1.

The monthly sessions of the county and corporations, serve to regulate the police of the county, much in the same manner as the petty sessions here mentioned. L. V. 1794, c. 67. §. 8.

9. The sheriff's tourn u, 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 taken10.

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. It's original intent was to view the frank pledges, 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 it's original 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 come to the court-

u 4 Inst. 259. 2 Hal. P. C. 69. 2 Hawk. P. C. 55.

w Mirr. c. 1. Sec. 13 and 16. x 4 Inst. 261. 2 Hawk. P. C. 72.

y Mirror. c. 1. Sec. 10. z See Vol. III. page 113.

a part 2 c. 19.

10. There is no court in Virginia, that resembles the sheriff's tourn.

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 misdemesnors, 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 haereda, 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.

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. Of the coroner

b Stiernh. de jure Goth. l. 1. c. 2.

c 4 Inst. 271. 2 Hal. P. C. 53. 2 Hawk. P. C. 42.

11. The proprietors of the Northern-Neck, were authorised to establish manors, and to hold within the same a court-leet, and view of frank pledge, of all the tenants, residents, and inhabitants within such respective manors, to be holden twice in every year. L. V. 1736, c. 3. Edi. 1794, c. 3.

I do not know whether they made use of their authority; but the franchise, I presume, was annihilated at the revolution.

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 nation12.

12. The court of the clerk of the market e is incident to every fair and market in the kingdom, to punish misdemesnors therein; as a court of pie poudre is, to determine all disputes relating to private or civil property 13. The object of this jurisdiction f, is principally the cognizance 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 burnt14. This is the most inferior court of criminal jurisdiction in the kingdom; though the objects of it's 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 aediles.

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

d See Vol. I. page 349. e 4 Inst. 273.

f See stat. 17 Car. II. c. 19. 22 Car. II. c. 8. 23 Car. II. c 12

g Bacon of English Gov. b. 1. c. 8.

12. See V. L. 1794, c. 81.

13. I am doubtful whether the charters of Williamsburg and Norfolk, authorise the holding of these courts therein. I believe there is no similar authority in any other place.

14. The county courts have, at present, cognizance of weights and measures. L. V. 1734, c. 1. Edi. 1769. Edi. 1794, c. 140, and c. 135. §. 10.

of crimes and misdemesnors 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 animae; or, which is looked upon as equivalent to all the rest, by a sum of 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 barterings of public justice.

1. And, first, the court of the lord steward, treasurer, or comptroller of the king's houshold i, was instituted by statute 3 Hen. VII. c. 14, to inquire of felony by any of the king's sworn servants, in the checque roll of the houshold, 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 houshold 15.

2. The court of the lord steward of the king's houshold, 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 sinkings; whereby blood shall be shed in, or

h See Vol. III. page 61. k Ibid. 2 Hal. P. C. 7.

i 4 Inst. 133.

15. Obsolete.

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 petit one, as at common law, taken out of the officers and sworn servants of the king's houshold. The form and solemnity of the process, particularly with regard to the execution of the sentence for cutting off the hand, which is a 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 officers of the servants of the houshold in and about such execution are described; from the serjeant of the wood-yard, who furnishes the chopping-block, to the serjeant farrier, who brings hot irons to sear the stump16.

3. As in the preceding book l we mentioned the courts of the two universities, or their chancellor's 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 misdemesnors 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 17.

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

l See Vol. III, page 83.

16. Obsolete.

17. Obsolete.

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 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 at the assises, 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 assise: 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; dum 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 assises, 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 misdemesnor 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 steward issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedell's 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.

I 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 adviseable to revive them: though it is not a right that merely rests in scriptis or theory, but has formerly often been carried in 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 assises, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff's and bedell's panels, and all the other proceedings on the trial of the several indictments, are still extant in the archives of that university13.

18. On the subject of courts of criminal jurisdiction the student may consult, the laws of Virginia, 1748, c. 4, 7, 9. 1753, c. 1, Edi. 1769. The constitution of Virginia, Art. 16, 17. L. V. Oct. 1777, c. 17. §. 56, &c. May, 1773, c. 9. Oct. 1778, c. 2. May, 1781, c. 1, Edi. 1785. Sessions acts of 1784, c. 40. Sessions acts of 1787, c. 39. Sessions Acts 1788, c. 67, 68. Sessions Acts 1789, c. 13, 40. Edi. 1794, c. 66, 67, 73, 74, 103. Sect. 30, Acts, 1802, c. 16.

Articles of Confederation, Art. 9.

C. U. S. Art. 1. Sec. 3. Art, 2. Sec. 4. Art. 3.

Amendments to C. U. S. Art. 8.

L. U. S. 1 Cong. 1 Sess. C. 20. Sec. 9, 11, 13.... Ibid. 2 Session. c. 9. Sec. 8.

Ibid. 3 Cong. c. 48. Sec. 5, c. 49. Sect. 9. c. 50. Sec. 6. c. 65. Sec. 12. 5 Cong. c. 1.... 6 Cong. c. 35.... 7 Cong. c. 8.

CHAPTER THE TWENTIETH.

OF SUMMARY CONVICTIONS.

WE are next, according to the plan I have laid down, to take into consideration the proceedings in the court 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 proceeding I mean principally such as is directed by several acts of parliament (for the common law is a 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. 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 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. 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 clue collection of the public money, and are a species of mercy to the delinquent, who would be ruined by the expense and delay of such 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 1.

a See Vol. I. page 319. &c.

1. By the Act of 1 Cong. 1 Sess. c. 20. §. 9, it is provided, that the district courts of the United States, shall have exclusive original cognizance of all seisures on land, or waters not navigable for vessels of ten tons burthen, and of all suits for penalties and forfeitures incurred under the laws of the United States: and the trial of all issues in fact, in such courts, except causes of admiralty and maritime jurisdiction, shall be by jury.

The act of 1 Cong. 3. Sess. c. 15. Sec. 25, imposing an excise, declares the penalty in one case therein particularised may be recovered by action, in any court proper to try the same.

The Act of 3 Cong. c. 48. Sec. 5, provides that where any fine, penalty or forfeiture, shall have been incurred, under the act for imposing duties on licences for selling wines, and foreign spirits, and the cause of action shall accrue more than fifty miles from the nearest place of holding a district court of the United States, the suit may be brought in any court of the state, within the same district, having jurisdiction in like cases. And the act for securing the duties on spirits distilled. As also, the act laying duties on property sold by auction, contain similar provisions. See L. U. S. 3 Cong. c. 49. Sec. 9, and c. 65. Sec. 12.

The act of 6 Cong. 2 Sess. c. 4, declares, that the circuit courts, thereby established, shall have cognizance of all seisures on land or

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. 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 individual: 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 particularly 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

b Lambard and Burn.

water, and all penalties and forfeitures (exclusive of the state courts) where the penalty is incurred more than fifty miles from the place of holding a circuit court: but this last act is repealed, 7 Cong. c. 8.

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 or two men; and we may also observe the necessity of not deviating any farther from our antient constitution, by ordaining new penalties to be inflicted upon summary convictions.

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 condemned. This is now held to be an indispensible 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 aequus fuit."

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 own 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: 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. Otherwise they fall of course under the general rule, and

c Salk. 181 2 Lord Raym. 1405.

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) plainly tend to create an 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 court of king's bench) have a general superintendance 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 2. 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 practice3. For the mal-practice of the officers

d 2 Hawk. P. C. 142, &c.

2. In some particular cases our law inflicts a specific fine upon the sheriff when guilty of any misconduct. See L. V. 1794, c. 80, 151, &c.

3. See Virginia Laws, 1794, c. 71.

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 misbehaviours or irregularities of a similar kind: but not in the mere exercise of their judicial capacities, as by giving a false or erroneous verdict4. 5. Those committed by witnesses. by making default when summoned, refusing to be sworn or examined, or prevaricating in their evidence when sworn5. 6. Those committed by parties to any suit or proceeding before the court: as by disobedience to any 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 determinatione. 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 6. And therefore it hath been held that such con-

tempts, and the process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by a 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 infinite7. 7. Those committed by any other persons under the degree of a peer: and even by peers

e See Vol. III. page 17.

4. See L. V. 1794, c. 73.

5. See L. V. 1794, c. 141.

6. In Virginia the award is made the judgment of the court, and the same execution thereupon issues, as on other judgments. L. V. 1794, c. 52.

7. This statute was never in force in Virginia.

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. 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 8: 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; 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 this 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 praecepto domini regis:" and if the she-

f Styl. 227. 2 Hawk P. C. 152. Cro. Jac. 419. Salk.586. g 4 Burr 632. Lords Journ. 7 Febr. 8 Jun. 1757. h Gilb. Hist. C. P. ch 3.

8. Or by appearing with arms. L. V. 1794, c. 21.

riff 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 carta.

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 j, without any farther proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowlege, unless by the confession of the party, or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to shew cause why an attachments should not issue against him i; or, in very flagrant instance of contempt, the attachment issues in the first instance k; as it also does, if no sufficient cause be shewn 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 is 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

j Staundf. P. C. 73. 6. i Styl. 277. k Salk. 84. Stra. 185, 554. l 6 Mod 73. m Stra. 444. n 6 Mod. 73. p Cro. Car, 146.

be of such a nature, that, when the fact is once acknowledged, the court can receive no farther 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 acknowledgement, and receive his judgment, without answering to any interrogatories: 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; and 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 recognized, 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.

p The king v. Elkins M. 8 Geo. III, B. R. q See Vol. III, page 100, 101. r Yearb. 23 Hen. VI, 37. 22 Edw. IV, 29.

s Stat. 43 Eliz. c. 6, Sec. 3. 13 Car. II, st. 2. c. 2. Sec. 4. 9 and 10 W. III, c. 15. 12 Ann. st. 2. c. 15. Sec. 5.

t M. 5 Edw. IV. rot. 75. cited in Rast. Ent. 268. pl. 5.

CHAPTER THE TWENTY-FIRST.

OF ARRESTS.

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 it's incidents; 6. Plea, and issue; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and it's consequences; 10. Reversal of judgment; 11. Reprieve, or pardon; 12. Execution: all which will be discussed in the subsequent part of this book.

First then, of an arrest; 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 warrant: 4. By an hue and cry.

1. A warrant may be granted in extraordinary cases by the privy council, or secretaries of state a; but ordinarily by justices of the peace 1. This they may do in any cases where they have

a 1 Lord Raym. 65.

1. It was presumed, that no such power existed either in the executive of the state, or of the federal government. But the act of 5

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; and also to all such offences as they have power to punish by statute. 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 combated it with invincible authority, and strength of reason: maintaining, 1. That a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted e 2 ; 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 as 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. This warrant ought to be under the hand and seal of the justice, should set forth the time and place of making, and the cause for which it is made, and should be directed to the

b 2 Hawk. P. C. 84. d 2 Hawk. P. C. 84 f Ibid. 110.

c 4 Inst 176. e 2 Hal. P. C. 108

Cong. c. 75, (now expired) authorise the president of the United States, not only to arrest aliens, whom he may have ordered to depart the United States upon the ground of suspicion only, but moreover to send them out of the United States.

2. The laws of Virginia expressly recognize this power of a justice of the peace. Edi. 1794, c. 74.

constable, or other peace officer, (or, it may be, to any private person by name g 3) requiring him to bring the party either generally 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 it's 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 it's authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon be really guilty or not. It is therefore in fact no warrant at all; for it will not justify the officer who acts under it k 4; 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 indem-


g Salk. 176. h 2 Hawk. P. C. 85.

i 1 Hal. P. C 580. 2 Hawk. P. C. 82.

k A practice had obtained in the secretaries office ever since the restoration, grounded on some clauses in the acts for regulating the press, of issuing general warrants to take up (without naming any person in particular) the authors, printers, and publishers of such obscene or seditious libels, as were particularly specified in the warrant. When those acts expired in 1694, the same practice was inadvertently continued, in every reign, and under every administration, except the four last years of queen Anne, down to the year 1763; when such a warrant being issued to apprehend the authors, printers, and publishers of a certain seditious libel, it's validity was disputed; and the warrant was adjudged by the whole court of king's bench to be void, in the case of Money v. Leach. Trin. 5 Geo. III. B. R. After which, the issuing of such general warrants was declared illegal by a vote of the house of commons. (Com. Journ. 22 Apr. 1766.)

3. But the warrant must in no case, be directed to any of the parties. L. V. 1794. 67. Sec. 2.

4. General warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted. Virginia Bill of Rights, Art. 10.

The right of the people to be secure in their persons, houses, pa-

nify the officer, who executes the same ministerially 5. 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 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 authorised 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 6.

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, 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 com-

l 1 Hal. P. C. 86.

m See Vol. I. page 355.

pers and effects, against unreasonable searches and seisures, shall not be violated; and no warrant shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seised. Amendments to C.U.S. Art. 6.

5. This statute was never in force in Virginia.

6. These statutes were never in force in Virginia.

mitted *, or a dangerous wounding whereby felony is like to ensue, he may upon probable suspicion arrest the felon; and for that purpose is authorised (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 arrest, 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 7.

3. Any private person (and a fortiori a peace officer) that is present when any felony is committed, is bound by the law to 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 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 8. But

n 2 Hal. P. C. 88.... 96. p 2 Hawk. P. C. 74. r Stat. 30 Geo. II. c. 24.

o Ibid 98.

q 2 Hal. P. C. 77.

* In the case of Samuel against Payne and others, Dougl. 345, it was adjudged in the K. B. that a peace-officer may justify an arrest on a reasonable charge of felony, without a warrant, although it should afterwards appear that no felony had been committed; but a private individual cannot.

7. This statute is repealed in Virginia. L. V. 1794, c. 147. The patrollers of the militia may arrest slaves, servants, or other disorderly persons unlawfully assembled, (i. e. I presume in the night time, in company with slaves. L. V. 1794, c. 103. Sec. 14. 1797, c. 4,) or strolling about from one plantation to another. L. V. 1794, c. 146. Sec. 32. c. 152. Sec. 24. Sess. Acts of 1795, c. 1. Sec. 39.

8. The student will observe, that the authority which judge Blackstone refers to, in this case, is a statute made in the reign of George II, which never was in force in this country.

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 an hue and cry raised upon a felony committed. An 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 coronatoriis 9. But the principal statute, relative to this

s 2 Hal P. C. 82, 83.

t Bracton. l. 3. tr. 2. c. 1. Sec. 1. Mirr. c. 2. Sec. 6.

But sir Mathew Hale who wrote near a century before the making of that statute, maintains the same opinion. But to make such arrest justifiable, first, there must be a felony committed, by some person. Secondly, the party if a private person that arrests must suspect the person arrested to be the felon. That is to say, the person who suspects, if a private person, must be he that makes the arrest, for one private person cannot justify an arrest upon the suspicion of another; but if A, having probable cause to suspect B, of a felony, acquaints C, with the whole matter, C, upon this having probable cause to suspect B, though he cannot justify the imprisonment of B, as by the command of A, that first suspected him, yet he may justify by his own suspicion; and the like of him that comes in aid of A, to arrest B. The third thing to be observed is, that, in these arrests by a private person upon suspicion; the person making the arrest hath a probable cause of suspicion. And these probable causes are very numerous; as for instance; common fame; hue and cry levied; part of the goods stolen found upon the party arrested: and many others. See Hale's, H. P. C. Vol. II. 78, 79, 80, 81.

9. As also in our act concerning coroners; which is so far a transcript from that statute. V. L. 1794, c. 81.

matter, is that of Winchester, 13 Edw. I, c. 1 and 4, which directs, that from thenceforth every country 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 hundred is bound by the same statute, c. 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 10. 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

u See Vol. III. page 161.

w Mod Un. Hist.vi 383. vii. 156.

x 2 Hal. P. C. 100...104.

10. These statutes are either repealed, or were never in force in Virginia. L. V. 1794, c. 147.

the same powers, protection, and indemnification, as if acting under the warrant of a justice of the peace. But if a man wantonly or maliciously raises an hue and cry, without cause, he shall be severely punished as a disturber of the public peace y.

In order to encourage farther 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. & 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 killed 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 statute 6 and 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, housebreaking, horsestealing, or private larciny to the value of 5s, from any shop, warehouse, coachhouse, or stable, shall be excused from all parish offices. And by statute 5 Ann. c. 31, any person so apprehending and prosecuting a burglar, or felonious housebreaker, (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 intent to steal, any sheep or other cattle speci-

y 1 Hawk. P. C. 75.

z The statutes 4 and 5 W. and M. c. 8. 6 and 7 W. III, c. 17, and 5 Ann. c. 31, (together with 3 Geo. I, c. 15. Sec. 4, which directs the method of re-imbursing the sheriffs) are extended to the county palatine of Durham, by Stat. 14 Geo. HI. c. 46.

fied in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 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 11.

11. Apprehenders of horse-stealers if not examined as witnesses at the trial, or if other sufficient evidence be given to convict the offender, are entitled to a reward of twenty dollars. L. V. 1794, c. 101. The statute referred to in this paragraph are not in force m Virginia. See Note, page 33.

CHAPTER THE TWENTY-SECOND.

OF COMMITMENT AND BAIL.

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: and how he is there to be treated, I shall next shew, 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: and to this end by statute 2 and 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 1: 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. If upon this inquiry it manifestly appears, either that 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. This commitment, there-

a Eirenarch. b. 2, c. 7. See p. 357.

1. This statute is repealed in Virginia, Edi. 1794, c. 147. It seems to have furnished the hint for the mode of proceeding in our examining courts, which will be noticed at the end of this chapter.

fore, 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 capital 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 seise 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 shewn in the preceding book c, viz. a delivery of 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 2. And, lest the intention of the law should be frustrated by the justices requiring bail to greater amount than the nature of the case demands, it is expressly declared by statute 1 W. & M, st. 2. c. l, that excessive bail ought not to be required; though what bail shall be called excessive, must be left to the courts, on considering the circumstances of the case to determine 3. And on

b Pott. Antiq. b. 1, c. 18. d 2 Hawk. P. C. 90.

c See Vol. III, p. 290.

2. L. V. 1794, c. 14. Accordant.

3. Virginia Bill of Rights, Art. 9. Amendments to C. U. S. Art. 10. Accordant.

the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal doth not appear e. Bail may be taken either in court, or in some particular cases by the sheriff, coroner, or other magistrate: but most usually by the justices of the peace. Regularly, in all offences either against the common 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 Ph. & Mar. c. 13, give farther regulations in this matter: 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

e Hawk. P. C. 89. f 2 Hal P. C. 127.

g c. 2, Sec. 24. h 2 Inst. 189.

i In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio, ubi ad terrorem aliter statutum est. (Glanv. l. 14, c. 1.)

k 2 Inst. 186. 2 Hal. P. C. 129.

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 it is also superadding one felony to another: 5. Persons outlawed: 6. Such as have abjured the realm: 7. Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused: 8. Persons taken with the mainour, or in the tact 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 larciny, 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 circumstance 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 pro-

l 2 Inst. 139. Latch. 12. Vaugh. 157. Comb. 111, 298. 1 Comyns Dig. 495.

m Skin. 683. Salk. 105. Stra. 911. 1 Comyns Dig. 497.

n In the reign of queen Elizabeth it was the unanimous opinion of the judges, that no court could bail upon a commitment, for a charge of high treason by any of the queen's privy council. (1 Anders. 298.)

o In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito, de homicidio. (Glan. l. 14. c. 1.) Sciendum tamen quod, in hoc placito, non solet accusatus per plegios dimitti, nisi ex regiae potestatis beneficio. (Ibid. c. 3)

vided 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 session lasts; or such as are committed for contempts by any of the king's superior courts of justice p 4.

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 1. 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 pri-

p Staundf. P. C. 73. b.

q 2 Hal. P. C. 122.

4. By the Act of 1785. c. 80, amended by that of 1800, c. 60, it is declared that no person shall hereafter be bailable for any offence which on the twenty-fifth day of March, 1800, was punishable in life or limb. And by the first of these acts, if the crime be so punishable; but only a slight suspicion of guilt fall upon the party, he was, and still is bailable. But if the crime be punishable in life or limb, or if it be manslaughter, and there be good cause to believe the party guilty thereof, he shall not be admitted to bail: the general outline given by Mr. Blackstone, in the preceding paragraph, may assist the student's inquiries; but for more particular information he must resort either to authors who treat particularly on criminal law, or to the acts of the general assembly of Virginia, throughout. No person is bailable after conviction of any felony. And, if any justice let any go at large who is not bailable, or refuse to bail any who have a right thereto, after offering sufficient bail, or require excessive bail, he shall be amerced at the discretion of a jury. L. V. 1794, c. 14. Sess. Acts, 1800. c. 60.

And for any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States, where he may be found, agreeably to the usual mode of process, against offenders in such state, be bailed for trial before such court of the United States as may have cognizance of his offence. And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the supreme or circuit court, or a judge thereof, respectively, in their discretion. L. U. S. 1 Cong. 1 Sess. c. 20. §. 33.

soner 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 poenam sibi commissorum non augeant, nec eos torqueant; sed omni saevitia remota, pietateque adhibita, judicia debite exequantur 5."

r 2 Inst. 381. 3 Inst. 34.

s Flet. l. 1. c. 26.

5. When any free person is charged before a justice of the peace with any criminal offence, which, in his opinion, ought to be further examined into, he is to take the recognizance of the witnesses to appear at the next county or corporation court, and commit the offender to jail; and moreover issue his warrant to the sheriff or sergeant to summon the justices to hold a court at the courthouse, on a certain day, not less than five, nor more than ten days thereafter, for the examination of the fact; "which court shall consider, whether as the

case may appear to them, the prisoner may be discharged from further prosecution, may be tried in the county or corporation, or

must be tried in the district court." If in their opinion the fact may be tried in the county or corporation, he may be bound over to the next grand-jury for the county or corporation; and for want of bail they may commit him to jail. If in their opinion the prisoner ought to be tried in the district court, they shall take the depositions of witnesses, and their recognizances to appear and give evidence against him at the trial; and then, if he be not bailable, any two justices, by warrant under their hands and seals directed to the sheriff or sergeant, may direct him to be removed, and committed to the district jail, there to be safely kept, until discharged by due course of law: but if the prisoner shall in the opinion of the court be bailable by law, they shall enter that opinion in their proceedings, and the sum in which he ought to be bound, and, thereupon, he shall not be removed within twenty days thereafter, but shall and may be admitted to bail, before any justice of the county or corporation within that time, or at any time afterwards, before any judge of the general court, who shall transmit his recognizance to the district court, and give a warrant for the deliverance of the prisoner. And any two judges of the general

court, when it is not sitting, may admit to bail a prisoner when they shall think him entitled thereto; notwithstanding the justices before whom the examination was, shall have been of a different opinion. And the examining court whenever they remand a prisoner to the district court for trial, are to issue a venire facias to the sheriff commanding him to summon a jury of freeholders of his county, &c. to appear at the next district court for that purpose. L. V. 1794, c. 74. Such is the mode of proceeding prescribed by our law, in cases where the complaint against any person for any criminal offence, is first made before a justice of the peace. And it seems to have been a popular opinion, and even the opinion of some of the judges of the general court, that an examining court was a matter of right, in all cases which are not triable in the county court, even though the party should have been indicted in the district court; but upon a case adjourned for the purpose of settling this question, and argument thereupon in the general court, November term, 1800. That court by the concurrent opinions of five judges against one, certified their opinion to the district court that a party indicted in the district court, and brought in upon a capias, ought to be put upon his trial, immediately, without remanding him to an examining court. Thomas Blakeley's Case, adjourned from Staunton district court.

CHAPTER THE TWENTY-THIRD.

OF THE SEVERAL MODES OF PROSECUTION.

THE next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. And this is cither 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 knowlege 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 1.

a Lamb. Eirenarch. l. 4. r. 5.

b 2 Inst. 739.

1. In a presentment to the county or corporation court, if the penalty of the offence exceed not five dollars or 300 pounds of tobacco, or to the district court, if the penalty exceed not twenty dollars, or 1000 pounds of tobacco, no information (or indictment) thereupon shall be filed; but a summons shall be issued against the defendant to answer the presentment. And if the prosecution be in the county or corporation court, if he do not appear having ten days notice, the court may enter judgment against him for the penalty; and if he do appear

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; and presentments of petty offences in the sheriff's tourn or court-leet, whereupon the presiding officer may set a fine. Other inquisitions may be afterwards traversed and examined; as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide: 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 misdemesnor, 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

c See Appendix, Sec. 1.

the court shall proceed to hear and determine the matter of the presentment, in a summary way without a jury, and without regard to any matter of form. L. V. Edi. 1794, c. 73. §. 2. There is some obscurity in the words of this act, which makes it doubtful whether the district court can proceed in like manner in case the defendant appears. The grand jury of a county or corporation may present all offences made penal by the laws of Virginia, although the recovery of the fines for the same may be otherwise directed; and although such fines do not amount to five dollars or 200 pounds of tobacco. But the grand juries in the district courts cannot present any offence, where the penalty is under the sum of five dollars, or two hundred pounds, of tobacco. Ibid. §. 5, 9.

be commanded themd. 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 (1), 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 praefectus 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 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

d 2 Hal. P. C. 154.

f Wilk. LL. Angl. Sax. 117.

e Ibid. 155.

(1.) Our law requires sixteen grand-jurors; and twelve of them at the least, must concur in every indictment or presentment. L. V.

1794, c. 73, post 306.

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 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 and 3 Edw. VI. c. 24, he is now indictable in the county where the party died 2. 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 and 6 Edw. VI. c. 11. And counterfeiters, washers, or minishers of the current coin, together with all manner of felons and their accessories, may, by statute 26 Hen. VII. c. 6, (confirmed and explained by 34 and

g State Trials. IV. 183.

2. But our law is otherwise; for he shall be examined in the corporation, and tried in the court of that district where the stroke was given, or the poison administered. L. V. 1794, c. 74. Sec. 16.

And an accessory to a murder or felony shall be examined by the court of that county or corporation, and tried in the court of that district in which he became accessory. Ibidem, Sec. 17.

And if the culprit be arrested in a different county or corporation from that in which the felony was committed, any justice of the county or corporation may issue his warrant for conveying him to the county or corporation where the offence was committed. And the sheriff or sergeant is authorised to impress men, horses, and boats, for his assistance in so doing. Ibidem, Sec. 19.

35 Hen. VIII. c. 26. Sec. 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 Hereford 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 and 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 Ann. 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, magazines, or stores, may, by statute 12 Geo. III. c. 24, be inquired of and tried in any county of England, or

h Stra. 533. 8 Mod. 134. i See Hardr. 66.

k Ely's case at the Old Bailey, Dec. 1720. Roache's case, Dec. 1775.

1 So held by all the judges, H. 11. Geo. III. in the case of Richard Mortis on a case referred from the Old Bailey.

m See page 244.

n At Shrewsbury summer assises, 1774, Parry and Roberts were convicted of plundering a vessel which was wrecked on the coast of Anglesey. It was moved in arrest of judgment, that Chester, and not Salop, was the next adjoining English county. But all the judges (in Mich. 15 Geo. III.) held the prosecution to be regular.

in the place where the offence is committed. By statute 13 Geo. III. c. 63, misdemesnors committed in India may be tried upon information or indictment 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 larciny 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 larciny in Scotland, and carrying the goods with him into England, or vice versa; or for receiving in one part of the united kingdoms 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 larciny 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 larciny 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 3.

o 1 Hal. P. C. 507. p Stat. 13 Geo. III. c. 31. q Stat. 25 Hen. VIII. c. 3. 3 W. and M. c. 9.

3. All high treasons, misprisions, and concealments of treason, and other offences against this commonwealth (except piracies and felonies on the high seas, de quibus infra,) committed by any citizen of this commonwealth, in any place out of the jurisdiction of the courts of common law of this commonwealth, and all felonies committed by citizen against citizen, in any such place, other than the high seas, shall be inquired into, heard, and determined in the general court, in the same manner as offences committed within the body of a county, are triable in a district court. L. V. 1794, c. 136.

The district courts of the commonwealth of Virginia, have full power to hear and determine all treasons, murders, felonies, and other crimes and misdemeanours whatsoever, committed or done within the district (except offences against the penal laws of the state, where the fine is under five dollars, or two hundred pounds of tobacco) which

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 farther 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 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

shall be brought before them. And the grand jury is sworn to make presentment accordingly. Ibid, c. 66. Sec. 16. c. 73. Sec. 1 and 9.

And the county and corporation courts respectively, may take cognizance of, and have power to hear and determine all offences against the penal laws of the state, and all other offences, except such criminal causes where the judgment, upon conviction, was for the loss of life or member, before the commencement of the act to amend the penal laws of the commonwealth. Ibid. c. 67. Sec. 5. c. 73. Section 2. Sessions Acts, 1796, c. 2. Sec. 26.

Any person feloniously stricken or poisoned in one county, and dying in another, the offender shall be tried in that district court to which the county where the stroke was given, or the poison administered, belongs. Ibid. c. 74. Sec. 16.

The trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district (of the United States) where the offender is apprehended, or into which he may be first brought. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 8. 5 Cong. c. 1.

And, in all criminal prosecutions, the accused shall enjoy the right to trial by a jury of the state and district in which the crime shall have been committed, which district shall have been previously ascertained by law. Amendments to C. U. S. Art. 8.

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. By statute 1 Hen. V, c. 5, all indictments must set forth the Christian name, sirname, and addition of the state and degree, mystery, town, or place, and the county of the offender: and all this to identify his person 4. 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 5. But sometimes the time may be very material, where there is any limitation 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 6: and, in

r 2 Hal. P. C. 161.

s 2 Hawk. P. C. 435.

t Fost. 249.

4. L. V. 1794. c. 74. §. 21. Accordant.

5. Ibid. §. 23. Accordant.

6. All actions, suits, bills, indictments, or informations upon any penal law of the commonwealth of Virginia, not affecting life or limb, must be commenced within one year after the offence committed. L. V. 1794, c. 74. Sec. 34.

No person shall be prosecuted, tried, or punished, for treason, or other capital offence against the United States, wilful murder or forgery excepted; unless the indictment for the same be found within three years; nor for any offence not capital, nor, for any fine or forfeiture under any penal statute; unless the indictment or information for the same be found within two years. But this act does not extend to persons fleeing from justice. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 32.

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 offence, 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 ligeantiae suae 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 t." In all indictments for felonies, the adverb "feloniously, felonies" must be used; 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 larcinies 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. 7 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 u, Lastly, in indictments, the value of the thing, which is the subject or instrument of the offence, must sometimes be expressed. In indictments for larcinies this is necessary, that it may appear whether it be

t See Vol. III, pag. 321. u 5 Rep 122.

7. All indictments must conclude, "against the peace and dignity of the commonwealth." C. V. Art. 18.

"In any inquisition or indictment, the words "force and arms," or any particular words, descriptive of any particular kind of force and arms, shall not of necessity be put or comprised." L. V. 1794, 74, Sec. 22.

grand or petit larciny; and whether entitled or not to the benefit of clergy: in homicide of all sorts it is necessary; as the weapon with which it is committed is forfeited to the king as a deodand.

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 Danish law, he might be taken and hanged upon the spot, without accusation or trial w 8. 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 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 volume 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 prosecu-

w Stiernh. de jure Sueon l. 3. c 5.

x 2 Hal. P. C. 149. y Lord Kayms. I. 331.

z See Vol. III p. 162.

8. No man shall be condemned in Virginia without trial. Bill of Rights, Art. 8. L. V. 1794, c. 15. Amendments to C. U. S. Art. 7.

tion be had after the expiration of two years from the commission of the offence 9.

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 enormous misdemesnors, 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 it's 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 misdemesnors, 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. And when an information is filed, either thus, or by the attorney general ex officio, it must be tried by a petit

a 2 Hawk. P. C. 260.

9. Informations must be instituted within one year, by the laws of Virginia; and within two years, by the laws of the United States. L. V. 1794, c. 74. Sec. 34. L. U. S. 1 Cong. 2 Sess. c. 9. Sec. 32. See the Note, page 306.

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.

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 a 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 misdemesnor, either personally against the king or his government, or against the public peace and good order, they were at liberty, without waiting for any farther intelligence, to convey that information to the court of king's bench by a suggestion 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 misdemesnors only: for, wherever 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 star-chamber, 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 assises or before the justices of the peace, who were to hear and determine the

b 1 Show. 113

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 harrassed 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 star-chamber continued in high vigour, and daily increasing it's authority, for more than a century longer; till finally abolished by statute 16 Can I. c. 10.

Upon this dissolution the old common lawd 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 practice e..... And it is observable, that, in the same act of parliament which abolished the court of star-chamber, 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 Mathew 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 !n 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, oc-

c 1 And. 157.

d 5 Mod. 464.

e Styl. Rep. 217, 245. Styl. pract. Reg. tit. Information. p. 187. (edit. 1657.) 2 Sid. 71. 1 Sid. 152.

f Stat. 16 Car. I, c. 10. Sec. 6. g 5 Mod. 460. h 1 Saund. 301. 1 Sid. 174.

casioned 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. & 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 10: and that every prosecutor, permitted to pro-

i M. 1 W. & M. 5 Mod. 459. Comb. 141. Far. 361. 1 Show 106.

10. No information for a trespass or misdemeanor shall be filed in any court, but by express order of court entered on record, nor until the party shall have failed to appear and shew good cause to the contrary, after a summons served upon him, or left at his usual place of abode: and the name and surname of the prosecutor, and the town or county in which he resides, with his title or profession, shall be written at the foot of the information, before it is filed, and of every bill of indictment for any trespass, or misdemeanor, before it is presented to the grand-jury. L. V. 1794, c. 74. §. 24. And if the grand jury do not find the bill, or if the defendant appear to shew cause against filing the information, and the prosecutor do not proceed, or if a verdict or judgment be given in his favour, he shall recover full costs against the prosecutor. Ibid. §. 25.

But if a presentment be made by a grand-jury on their own knowlege; or on the information of a witness, called upon by the court, or the grand-jury, the informant is not liable to costs. Sessions Acts, 1795, c. 10.

And in all such informations, or indictments, the fine or amercement shall be assessed by the jury. V. L. 1794, c, 74. §. 26.

And note; if there be several defendants upon an indictment for an assault, the fine must be several. Call's Rep. 555.

"Where any information shall be filed by the attorney for the commonwealth, by express order of the court entered of record, the party supposed to be culpable having failed to appear and shew cause against such order, having been required so to do by summons, appointing a convenient time for that purpose," no prosecutor shall be required on such information: nor on an information, or bill of indictment for a trespass or misdemeanour filed or sent to a grand-jury, in consequence of a previous presentment made of their own knowlege, or on the information of any two of their own body. L. V. Sessions Acts, 1801, c. 18.

mote 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 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 farther regulated by statute 9 Ann. c. 20, viz. those in the nature of a writ of quo warranto; which was shewn, in the preceding volume k, to be a remedy given to the crown against such as had usurped or intruded into any office or franchise 11. 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 proceeeding.

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 it's first commencement l. An appeal therefore, when spoken of as a crimi-

k See Vol. III. p. 262.

l It is derived from the French, "appeller," the verb active, which signifies to call upon, summon, or challenge one; and not the verb neuter, which signifies the same as the ordinary sense of "appeal" in English.

11. The statute 9 Ann, c. 20, here referred to, was never in force in Virginia.

nal 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 great 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 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 redeemed by

m 2 Hawk. P. C. ch. 23. n Stiernh. de jure Sueon l. 3. c. 4.

o de M G. c. 21.

p And in another place, (c. 12. ) "Delictis, pro modo poenorum, expiorum pecorumque numero convicti mulctantur. Pan mulctae regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus, exsolvitur."

q Spenser's state of Ireland, page 1513. edit. Hughes.

r Judic. Civit. Lund. Wilk. 71.

s The weregild of a ceorl was 266 thrysmas, that of the king 30,000; each thrysma being equal to about a shilling of our present money. The weregild of a subject was paid entirely to the relations of the party slain; but that of the king was divided; one half being paid to the public the other to the royal family.

t c. 12.

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 these 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 battle awarded in the court of chivalry, on such an appeal of treason x: but that in the first was virtually abolished y by the statute 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 larciny, rape, and arson. And for these, as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burnt, may institute this private process. The only crime against one's relation,

u In Turkey this principle is still carried so far, that even murder is never prosecuted by the officers of the government, as with us. It is the business of the next relations, and them only, to revenge the slaughter of their kinsmen: and if they rather choose (as they generally do) to compound the matter for money, nothing more is said about it. (Lady M. W. Montague, lett. 42.

w Britt. c. 22.

x By Donald lord Rae against David Ramsey. (Rushw. Vol. II. part II. page 112.)

y 1 Hal. P. C. 349.

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 next heir by the course of the common law, at the time of the killing of the ancestor. But this rule has 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 Gloucester, 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 "praescriptio annalis, quae currit adversus actorem, si de homicidia et non constet intra annum a caede 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

z Mirr. c. 2. Sec, 7.

a Stiernh. de jure Goth. l. 3. c. 4.

b Ibid. l. 1. c. 5.

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.

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 12. 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 univer-

c See page 335. d l. 1. c. 34. Sec. 48. e 2 Hawk. P. C. 392.. f LL. Edm. Sec. 3. g M. II Hen. IV, 12. 3 Inst. 131.

12. This statute is now repealed in Virginia. L.V. 1794, c. 147.

sally 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 discharge an appeal l: "nam quilibet potest renunciare juri pro se introducto 13."

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.

h Robertson. Cha. V. i. 45.

i 1 Hal. P. C. 9.

13. I have never heard of an appeal in any criminal case, having been brought, or prosecuted in Virginia, nor is there any legislative act by which the process is regulated. For the difficulties which might occur in the prosecution of an appeal, according to the course of the common law, see 5 Burrow's Reports, 2643, and 2793, and 2 Blacks. Reports, 710, 714.

If murder or other felony, be committed within the sole and exclusive jurisdiction of the government of the United States, it might be doubted whether the right of appeal be not taken away, in case the party be prosecuted upon an indictment: for the seventh article of the amendments to the C. U. S. expressly declares, that no person shall be subject for the same offence to be twice put in jeopardy of life, or limb. And this, in general, seems to be the doctrine of common law, as well as of the constitution of the United States. Yet appeals were always allowed in murder, and some other cases, by the common law.

CHAPTER THE TWENTY-FOURTH.

OF PROCESS UPON AN INDICTMENT.

WE 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 secrets himself, in capital cases; or hath not, in smaller misdemesnors, been bound over to appear at the assises 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 the 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 1.

The proper process of an indictment for any petty misdemesnor, or on a 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 distreined, then a distress infinite shall be issued from time to time till he appears. But if

1. Bill of Rights. Art. 8. L. V. 1794, c. 15. Amendments to C. U. S. Art. 7 and 8. Accordant,

the sheriff returns that he hath no lands in his bailiwick, then (upon his non-appearance) a writ of capias shall issue, which commands the sheriff to take his body, and have him at the next assizes; and if he cannot be take upon the first capias, a second and a third shall issue, called an alias, and a pluries capias 2. 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 misdemesnors, 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. 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 otherwise3.

a See Append. Sec. 1.

b 2 Hal. P. C. 195.

2. Upon presentment made by the grand jury of an offence not capital, the court shall order the clerk to issue a summons or other proper process, against the person or persons, so presented, to appear and answer the same, at the next court. L. V. 1794, c. 74. §. 28.

3. When the grand jury shall have presented to the district court a bill of indictment against any person charged with treason or felony, if he be not already in custody, the sheriff shall be commanded to attach his body by writ, or by precept, which is called a capias; and if he return that the body is not found, another writ or precept of capias. shall be immediately made returnable forthwith in which the sheriff shall also be commanded to seise his chattels and safely to keep them; and if he return that the body is not found and the indictee cometh not,

The punishment for outlawries, upon indictments for misdemesnors, 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 chattels4. 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 5. His life is, however, still under the protection of the laws, as hath formerly been 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 6; 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

c See Vol. III. p. 283, 4. e See page 178. g 1 Hal. P. C. 497.

d 2 Hal. P. C. 205.

f Mirr. c. 4. Sec. 4. Co. Litt. 128.

h Bracton, fol. 125.

an exigent shall be awarded, and the chattels shall be sequestered; but if he come and yield himself, or be taken before the return of the fourth capias, the goods and chattels shall be saved to him; otherwise they shall go, descend, and pass in like manner, as is by law directed in case of persons dying intestate. L.V. 1794, c. 74. §. 5 and 31.

4. See the preceding note.... It seems that a forfeiture of goods and chattels may still be incurred by an outlawry, in Virginia, although the benefit of that forfeiture does not go to the commonwealth, but to the next of kin to the outlaw. Ib. Sec. 31.

5. L. V. 1794, c. 74. §. 18. Accordant, except that the attainder doth not work any corruption of blood. Sec. 31.

6. This appears to have been the case of slaves outlawed in pursuance of the act of 1748, c. 31. Sec. 20, which hath been repealed.

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 7: 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; 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 8: 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 counties or places where the process of the inferior judges will not reach him i. Such writ of certiorari,

i 2 Hal. P. C. 210.

7. If the defendant be taken upon the writ of capias, or appear upon the return thereof, or of the exigent, the practice hath been (in some cases) to award a venire facias directed to the sheriff of the county where the offence was committed, and returnable to some certain day in the same term, (or in the next term, if there be not time enough for the trial to be had in the same term,) commanding him to summon a jury of freeholders of his county, qualified as the law directs, to appear on a day therein prescribed, to serve as jurors for the trial of the accused. And the clerk issues subpoenas for the witnesses as well for the prisoner, if he have any, as for the commonwealth, to attend the trial at the same time. And this practice may now be considered as settled, having received the sanction of the general court, in Thomas Blakeley's case. See Note, page 300, 301.

8. Perhaps our law is defective in these cases.

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.

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 9.

k 2 Hawk. P. C. 287. 4 Burr. 749.

9. I have, perhaps unwarrantably, entertained an opinion, that the GENERAL court of this commonwealth was, by the constitution, intended to be the supreme custos morum of the commonwealth, as well as the officina justitiae therein; and that every person who was in any manner aggrieved, either in his person or his property, within this commonwealth, might be sure to find remedy and redress therein, either mediately or immediately, unless a certain remedy was already provided for his case by law, in some other court. And as it might happen that in other courts the proper remedy might possibly be denied, that this court, by it's general superintending power, might control or remove the obstacle, whatever it might be, to the full attainment of justice. On the other hand, I presumed, that as the supreme custos morum, it ought to have cognizance at all times, of all offences whatsoever, contra bonos mores; consequently, that an indictment might be found, or an information filed therein against any person in any part of the state, and for any offence whatsoever, small or great:

but inasmuch as other courts are provided by law where the trial might be had with less expence and greater convenience to the parties and their witnesses, that it would be proper to remove the indictment or information by a writ of certiorari (as we see is the common practice in England) to the court of that district or county, where, from the nature of the case, it might appear that the trial ought to be had.

CHAPTER THE TWENTY-FIFTH.

OF ARRAIGNMENT AND IT'S INCIDENTS.

WHEN the offender either appears voluntary 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 arraign, 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 booksb, 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, A. D. 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.

a 2 Hal. P. C. 216.

b Bract. l. 3. de coron. c. 18. Sec. 3. Mirr. c. 5. sect. l. Sec. 54. Flet. l. 1. c. 31. Sec. 1. Brit. c. 5. Staundf. P. C. 78: 3 Inst. 34. Kel. 10. 2 Hal. P. C. 219. 2 Hawk. P. C. 308.

c State Trials. VI. 230.

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, he owns himself to be of that name by which he is calledd. However, it is not an indispensable ceremony; for, being calculated merely for the purpose of identifying the person, any other acknowlegement 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, had 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 non constitit 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 1 Ann, 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

d 2 Hal. P. C, 219. e Raym. 408.

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. 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 1.

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 im-

f Foster. 365, &c.

g 2 Hal. P. C. 316.

1. The statute of Ann. above mentioned, was never in force in Virginia, but our law seems to be nearly a transcript from it, declaring: That if any principal offender shall be convicted of any felony, or stand mute, or preremptorily challenge above the legal number of jurors, it shall be lawful to proceed against any accessory, either before, or after the fact, as if the principal had been attainted, notwithstanding he might have been admitted to the benefit of clergy, pardoned, or otherwise delivered before attainder. L. V. 1794, c. 109, §. 3. And, by the same act, it shall be lawful to prosecute and punish every person buying or receiving stolen goods, knowing them to be stolen (and by the act Concerning horse-stealers, buying or receiving any horses stolen, knowing the same to be stolen, V. L. 1794, c. 101, §. 3.) as for a misdemeanour, to be punished by fine or imprisonment, although the principal felon be not before convicted; which shall exempt the offender from being punished as accessary, if the principal shall be afterwards convicted. L. V. 1794, c. 109.Sec.4.

panel 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. But whether judgment of death can be given against such a 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 larciny, and in all misdemesnors, 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, with out any distinction of sex or degree. A judgment, which was pur-

h 2 Hawk. P. C. 327. i 2 Hal. P. C. 317.

k 3 Inst. 178.

l 2 Hawk. P. C. 329. 2 Hal. P. C. 317.

m 2 Hal. P. C. 320.

n 2 Hal. P. C. 321. 2 Hawk. P. C. 332.

posely ordained to be exquisitely severe, that by that very means it might rarely be put in execution.

The rack, or question, to extort a confession from criminals, is a practice of a different nature: this having been only 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 VI, had laid a design to introduce the civil law into 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 it's introduction in the civil law, and its subsequent adoption by the French and other foreign nations r: viz. because the laws cannot endure, that a 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,

o 3 Inst. 35. p Barr. 92. 496.

q Rushw. Coll. i. 638.

r Cod. l. 9. t. 41. l. 8. & t. 47. l. 16. Fortesc. de LL. Ang. c. 22.

s The Marquis Beccaria, (ch. 16 ) in an exquisite piece of raillery, has proposed this problem, with a gravity and precision that are truly mathematical; the force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain, necessary to make him confess himself guilty of a given crime,"

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 usual to torture slaves, in order to furnish evidence: "tamen," says he, "illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum carporis, regit quaesitor, flectit libido, corrumpit spes, infirmat metus: ut in tot rerum angustiis nihil veretati loci relinquatur t.

The English judgment of penance for standing mute v 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 u.

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 Hen. 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

t Pro Sulla. 28.

v 2 Hal. P. C. 319. 2 Hawk. P. C. 329. u Britton. c. 4. & 22. Flet. l. 1. c. 34. Sect. 33. w 2 Inst. 179. 2 Hal. P. C. 322. 2 Hawk. P. C. 330. x Staundf. P. C. 149. Barr. 82. y Emlyn on 2 Hal. P. C. 322.

z Al common ley, avant le statute de West. 1. c. 12, si ascunust estre appeal, et ust estre mute, ill sera convict de felony. (M. 8 Hen. IV. 2.)

such persons "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 fort 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 soon happen under an enormous pressure.

The uncertainty of it's original, the doubts that were conceived of it's legality, and the repugnance of it's theory (for it rarely was 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, as a monument of the savage rapacity with which the lordly tyrants of feodal antiquity

a ch. l. Sec. 9. b 6 Rym. 13.

c Yearb. 8 Hen. IV. 1.

d Et fuit dit, que le contraire avoit estre fait devant ces heurs. (Ibid. 2.)

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 c. 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 or 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. And thus much for the demeanor of a prisoner upon his arraignment, by standing mute; which now, in all cases, amounts to a constructive confession 2.

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.

e 2 Hawk. P. C. 331.

f 2 Hal. P. C. 225.

2. And herewith the