Commentaries on the Laws of England: In Four Books - William Blackstone - Google Books

Books

OF OFFENCES AGAINST THE PUBLIC HEALTH, &C.-(continued.)

in which case the marriages, except the first, are mere nullities,..

in three cases, namely: 1. where the party had been continually abroad

for seven years, or, 2. was not known to be living during that time; 8.

was divorced a mensa et thoro: though the second marriage is void, it

is not a felony,..

in other cases, namely, 1. where there is a divorce a vinculo, and 2. where
the first marriage was voidable for want of age, and was afterwards
not agreed to, the second marriage is valid,.....

8. idle soldiers and mariners wandering about the realm,

4. gypsies remaining in the kingdom, &c.,..

5. common nuisances, which are either the doing of a thing to the annoyance

of all the king's subjects, or neglecting to do a thing the common good

164

as obstructions to the highways, bridges, or public rivers,.

offensive trades and manufactures,

disorderly inns, bawdy-houses, gaming-nouses, &c.,.

lotteries, fireworks, &c.....

eavesdroppers and common scolds,.

6. being idle and disorderly, rogues and vagabonds,.

7. luxury, the laws against which are generally repealed,..

8. gaming, which is made punishable by penalties, and the securities obtained

thereby are void..

9. offences against the game laws,

crimes against persons are principally, 1. against their persons; 2. against their

habitations; 3. against their property..

of crimes injurious to the persons of subjects, the first is homicide, or the killing

of a human creature,

which is either justifiable, excusable or felonious...

justifiable homicide is,

1. such as is owing to unavoidable necessity, without any will, intention, or

desire, inadvertence or negligence in the party killing,.

as when done by command of the law,.

or to prevent some atrocious crime,.

2. such as are committed for the advancement of public justice,

as where an officer kills one that assaults or resists him,..

or one charged with felony is killed in the endeavor to arrest him,..... 179

or where persons are killed in dispersing a mob,.......

or where jailor or officer kills the prisoner who assaults him,.

or where the trespassers in parks, &c., will not surrender to the keepers,

but in all these cases the killing must be an apparent necessity,....

formerly, where one was killed in trial by battel,..

8. such as are committed for the prevention of any forcible and atrocious

as where one is slain who attempts robbery, murder or burglary,.

or in the defence of chastity,....

in all these cases the slayer is faultless and not punishable,...

excusable homicide is,

1. per infortuniam, or by misadventure,..

189

but if this occur in consequence of an idle, dangerous and unlawful

sport or other act, it is manslaughter,.

1. se defendendo, or in self-defence,...

but here it must appear that the slayer had no other possible (or prob-

able) means of escaping from his assailant,.

this head includes defence of one's family,..

also the case where both parties are innocent, as shipwrecked persons

contending for the same plank,...............

in these cases there was formerly forfeiture of goods,.

felonious homicide is the killing of a human creature without justification or

this may be self-murder, punished by ignominious burial and forfeiture of

O HOMICIDE-(continued.)

or killing another, which is either manslaughter or murder,.....

manslaughter is the unlawful killing of another without malice express or im.

which is either voluntary or involuntary,

instances of the first, where in a sudden fight one kills another, or the hus-

band slays one taken in adultery with his wife,.

instances of the second, where one kills another in doing a lawful act negli-

gently or in an unlawful manner,.....

....

these homicides felony, but not capital, generally,..

murder is the unlawful killing by one of sound mind and memory of any reason-

able creature in being, and under the king's peace, with malice afore-

thought, express or implied,..............

express malice is where one with deliberate mind and formed design, doth kill

198

and this exists when one kills another in a duel,....

the malice need not be towards the person killed in particular,.

malice is implied without proof in case of deliberate killing, or killing with-

out provocation,...

and where one upon a sudden provocation beats another in a cruel and

unusual manner,.

and where one kills an officer in the performance of his duty,

and where one is killed in the attempt to commit a felony,.

parricide is the murder of one's parents or children,

petit treason is the murder of the master by the servant, the husband by the

wife, or his superior by an ecclesiastical person,.

the distinction between which and murder is now abolished,.

CHAPTER XV.

OF OFFENCES AGAINST THE PERSONS OF Individuals,.....

offences against the persons of individuals are:

1. mayhem, or the violently depriving another of the use of such of his mem-

bers as may render him the less able in fighting to defend himself or

annoy his adversary,....

which includes loss or disabling of a hand, finger, eye or foretooth,...

to which offence may be added malicious shooting at any one,..........

forcible abduction and marriage or defilement of females,.

and taking away female child under sixteen years of age from parent or

8. rape, or the carnal knowledge of a woman, forcibly and against her will,.

which a male infant under fourteen is presumed incapable of committing,

forcible violation of a harlot is rape,...

5, 6, 7. assaults, batteries and wounding, which are punishable as misdemean-

of which beating a clerk in orders or clergyman is more severely punished,

8. false imprisonment also a misdemeanor,..

9. kidnapping, or the forcible abducting or stealing away of a person from
his own country and sending him into another,

819

OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.

offences more immediately affecting the habitations of individuals, are arson and

arson is the malicious and wilful burning of the dwelling-house of another,.

1. out-houses which are parcel of the dwelling, though not contiguous, are

subjects of arson,.

also, a barn filled with hay or corn, or a stack of corn by the old com-

the house must be the house of another,.

221

the attempt to burn a dwelling is not arson, but the consuming of any part

is sufficient,....

O OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS (continued.)
the offence is felony,.

burglary is the breaking and entering by night into a dwelling-house with intent

to commit a felony,..

PAGE

229

1. it is night when there is not daylight enough begun or left to discern a

man's face withal,.............

3. the offence may be committed in a church,.

and in any house where a man resides, though he may be temporarily

and in any building inclosed with the house by the same common fence,

a chamber in college or inn of court, &c., is the occupant's mansion,...

tents and booths not dwelling-houses, though the owner lodge there,..

8. there must be both a breaking and an entry....

the removal of any obstruction to entering is a sufficient breaking,..

the entering a chimney, or getting in by fraudulent artifice,....

the entry with any part of the body, or with an instrument held in the

hand, is sufficient,.

4 the intent must be to commit either a common-law or statutory felony,..

OF OFFENCES AGAINST PRIVATE PROPERTY...

offences more immediately affecting the property of individuals are:

1. larceny, which is either simple or compound,.

simple larceny is the felonious taking and carrying away of the personal

goods of another,.

but embezzlement by servants is made felony,....

the taking of one's own goods to defraud another is felony in some cases, 231

any removal of the goods, though the thief does not make off with them,

is a sufficient carrying away,.

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the taking must be complete,....

the property must be the personal goods of another....

animals fera natura, unreclaimed, not subjects of larceny generally,...

but domestic animals (except dogs and the like) are,..

compound larceny has all the properties of the other, with the aggrava-

286

and from the person, or from one's presence, and be accom-

the taking must be by force or a previous putting in fear,.

8. malicious mischief to property from wanton cruelty or revenge,.. ..244-247

8. forgery, or the fraudulent making or alteration of a writing to the preju-

dice of another man's right......

the statutes for the punishment thereof,.

OF THE MEANS OF PREVENTING OFFENCES,...

preventive justice consists in obliging persons suspected of future misbehavior

to give pledge or securities for keeping the peace or for good behavior... 251

the security consists in being bound in a recognizance in a certain sum, to
be void if the condition is observed,.....

259

the condition may be to keep the peace generally, or particularly also, with
regard to the person craving the security,.

258

if the condition is broken, the recognizance is estreated and sent up to the

exchequer for suit,...

any justice of the peace may demand such security,.

253

or the superior courts may take it,....

258

femes covert and infants give security by their friends and not in person,..

854

OF 1905 MEANE OF PREVENTING OFFENCES-(continued.)

the security is discharged 1. by demise of the king; 2. by death

of the principal before forfeiture; 3. by order of the court on

cause; 4. if granted on private account, by release, &c....... 254

any justice may er officio bind parties to keep the peace who make af-

fray in his presence, &c.,....

and private parties may swear the peace against others, where

there is just cause to fear injury....

what will constitute a breach of the recognizance,.

any justice may bind over to good behavior any that be not of

how the recognizance may be forfeited,.

CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION,.

courts of criminal jurisdiction are either of a public and general jurisdiction, or

only of a private and special jurisdiction,...

criminal courts of public and general jurisdiction are,

1. the high court of parliament, which may by bill attaint persons or inflict

pains and penalties,.

and the commons may impeach before the lords a commoner for high mis-

demeanors, or a peer for any crime...

proceedings on impeachment,..

the powers now transferred to the central criminal court,

& the court of the lord high steward, for the trial of peers for treason, felony

or misprision of either,.

the trial being by peers upon indictment previously found,.......

all the peers being summoned except the bishops,.....

8. the court of king's bench, which takes cognizance of crimes of all grades,.

4. the court of chivalry, now disused,............

5. the high court of admiralty, having cognizance of offences on the sea, or

on the coast out of the body of any county, &c..,...

6, 7. the courts of oyer and terminer and general gaol delivery,.

269n

11. the court of the coroner, to enquire concerning deaths in prison or sudden

or violent deaths,....

12. the court of the clerk of the market,.

criminal courts of a private and special jurisdiction are,

1. the court of the lord steward, treasurer or controller of the king's house-

2. the court of the lord steward of the king's household, or in his absence, of

the treasurer, controller and steward of the marshalsea,

8. the courts of the two universities,..

OF SUMMARY CONVICTIONS,

summary convictions, except in case of contempts are unknown to the common

in these there is no intervention of a jury,..

these are allowed,

1. in cases of offences against the revenue laws,...............

2. in cases of vagrancy and other disorderly offences,.

a summons in these cases is requisite,..........

to this head may also be referred,

8. the punishment of contempts of court by attachment......

the power to do which is an inseparable incident to every superior

If the offence be in the presence of the court it may be punished with-

out further proof or examination,.

in other cases a party is generally ruled to show cause, and examined

on interrogatories,...

and if convicted may be fined and imprisoned,...
but if he clears himself by his answer he is discharged,.

28

an arrest is the apprehending or restraining one's person, in order to be forthcom-

ing to answer an alleged or suspected crime,,..

it is made, in general,

1. by warrant, which, in extraordinary cases, may be granted by the

privy council or secretaries of state...

a general warrant to apprehend all persons suspected or guilty of a

crime, naming none, is void,..

if the warrant is fair on its face the officer is justified in exe-

cuting it,.......

by officers without warrant, which may be by a justice in case of fel-
ony or breach of peace in his presence,...

299

or by sheriff or coroner, of any felon in his county,.

or by constable, in case of breach of peace in his view, or of felony

actually committed, or dangerous wounding..

or by watchmen, of all offenders,.

8. private persons and officers present at the commission of a felony
must arrest the felon.......

298

and may justify breaking doors for the purpose,.

and upon probable suspicion in case of felony actually committed
may arrest the supposed felon....

298

4. hue and cry is the old common-law process of pursuing, with horn

and voice, felons and such as have dangerously wounded another,.. 294

which may be raised by precept of a justice, or by a peace officer, or

by any person knowing of a felony,..

and those prosecuting it have the same powers as under a warrant,.... 294

rewards sometimes offered for arrests,

OF COMMITMENT on Bail,...

when a person is arrested, he is taken before a justice and examined,

if the charges prove unfounded, he is discharged....

otherwise, he is committed for safe custody, or held to bail.

bail must not be refused in bailable cases, nor excessive bail required,.

anciently all felonies were bailable, but statutes make some exceptions,....

a prisoner committed to await trial is to be treated with the utmost humanity, 800

CHAPTER XXIIL

OF THE SEVEral Modes oF PROSECUTION,..

prosecution of offenders is either with or without the previous finding of the fact

by inquest or grand jury,............

the first is either by presentment or indictment,.

a presentment, properly speaking, is the notice taken by a grand jury of an

offence from their own knowledge observation,.....

an inquisition of office is the act of a jury summoned by the proper officer to

inquire of matters relating to the crown,..

as in case of felo de se, deodands, &c.,..

an indictment is a written accusation of crime, preferred to and presented

upon oath by a grand jury,....

which is a tribunal of not less than twelve nor more than twenty-three,.. 802

who are charged by the judge and proceed upon evidence,.

indictments must be certain as to person, place, time and offence,

806

though time and place are generally immaterial,..

806

Informations are either at suit of the king and a subject jointly, or at suit of

the king alone,...

the first are a sort of qui tam action,.

the second are either filed, ex officio, by the attorney-general, or are on the

relation of some private person or common informer,

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