"king of England by the name of James the Third, or of Scotland "by the name of James the Eighth, or the stile and title of king "of Great Britain, hath any right or title whatsoever to the "crown of this realm, or any other the dominions thereunto be"longing: and I do renounce, refuse, and abjure any allegiance " or obedience to any of them. And I do swear, that I will bear "faith and true allegiance to his Majesty KING GEORGE, and "him will defend to the utmost of my power, against all traito"rous conspiracies and attempts whatsoever which shall be made "against his person, crown, or dignity. And I will do my utmost "endeavour to disclose and make known to his majesty, and his "successors, all treasons and traitorous conspiracies which I shall "know to be against him, or any of them. And I do faithfully "promise, to the utmost of my power, to support, maintain, and "defend the succession of the crown against the descendants of "the said James, and against all other persons whatsoever, which "succession, by an act intitled An Act for the further Limita"tion of the Crown, and better securing the Rights and Liber"ties of the Subject,' is and stands limited to the Princess Sophia, "electoress and duchess dowager of Hanover, and the heirs of "her body being protestants. All these things I do plainly and "sincerely acknowledge and swear, according to these express "words by me spoken, and according to the plain common sense "and understanding of the same words, without any equivoca...“ tion, mental evasion, or secret reservation whatsoever. And I "do make this recognition, acknowledgment, abjuration, renun"ciation, and promise, heartily, willingly, and truly, upon the "true faith of a Christian." CHAP. VII. ` OF FELONY AND MISPRISION OF FELONY. OFFENCES more immediately against the subject are either capital or not capital.-The capital offences are either by the common law, or by statute. Felonia, 214. Sect. 1. Those by the common law come generally under the Vide Spelm. title of FELONY, which ex vi termini signifies quodlibet (1) crimen Gloss. verb. felleo animo perpetratum, and can be expressed by no periphrasis, Co. Lit. 391. or word equivalent, without the word felonicè. (2) Sect. 2. FELONY is said to be included in high treason, and 3 H. 7. 10. consequently a pardon of felony discharges an indictment of 3 Inst. 15. high treason, if it want the word proditoriè. (1) This is the fanciful derivation of the term Felony by Sir E. Coke-but the derivation adopted by Blackstone from Sir Ed. Spelman seems more probable. Felon according to him is derived from two Northern words; FEE, which signifies the fief or feud, and LON, which signifies price or value. Felony, therefore, is pretium feudi, the consideration for which a man gives up his fief.-Felony in this sense signified the forfeiture of the fief, and Sect. 4 Comm. 94. 97. by the change of meaning in language the penal consequences of the crime became the name of the crime itself. (2) Sir Ed. Coke says it was anciently so considered, and that a pardon of felony will discharge an indictment for Treason if it want the word proditoriè, because it can be no good indictment for treason without that word. (a) Foster. (b) Bract. 1. c. 4. S. P. C. 17. 27. (e) 1 Sid. 230, 231. Kely. 24. (d) Bacon's case, 1 Lev. Sect. 3. It is always accompanied with an evil intention, and therefore shall not be imputed to a mere mistake or mis-animadversion; as where persons break open a door in order to execute a warrant, which will not justify such a proceeding (a); affectio enim tua nomen imponit operi tuo; item crimen non contrahitur nisi nocendi voluntas intercedat. (b) But the bare intention to commit a felony is so very criminal, that, at the common law, it was punishable as felony, where it missed its effect through some accident no way lessening the guilt of the offender. (c) But it seems agreed at this day, that felony shall not be imputed to a bare intention to commit it; yet it is certain that the party may be very severely fined for such an intention. (d) 146. Rex v. Cooper. 5 Mod. 206. 1 Hale, 627. 641. 703. B. Cor. 204. 3 Inst. 91. 2 Inst. 434. Co. Lit. 391. Hobart, 293. Co. Lit. 391. 3 Inst. 146. Sect. 4. But before I proceed to treat of each crime in particular, I shall endeavour to shew, 1. Where an offence shall be said to be made felony by statute. 2. What is incidentally implied in every such statute. As to THE FIRST POINT, viz. Where an offence shall be said to be made felony by statute. Sect. 5. It seems clear, that not only those crimes which are made felonies in express words, but also all those which are decreed to have or undergo judgment of life and member by any statute become felonies thereby, whether the word " felony" were omitted or mentioned. Sect. 6. But an offence shall never be made felony by the conHob. 270. 293. struction of any doubtful and ambiguous words of a statute; and therefore, if it be only prohibited under "pain of forfeiting "all that a man has," or of "forfeiting body and goods," or of being "at the king's will for body, land, and goods," it shall amount to no more than a high misdemeanor, punishable by imprisonment, &c. 1 Hale, 324. 685.570. 2 Bulst. 349. Dyer, 323. 1 Leon. 295. Rex v. Davis, Cases in Cro. 3 Inst. 73. Sect. 7. Also where a statute makes a second offence felony, or subject to a heavier punishment than the first, it is always implied, that such second offence ought to be committed after a conviction for the first; from whence it follows, that if it be not so laid in the indictment, it shall be punished but as the first of fence; for the gentler method shall first be tried, which perhaps may prove effectual. Sect. 8. But if a statute make the doing of an act felonious, and a subsequent statute make it penal only, the latter statute is considered as a virtual repeal of the former, so far as relates to the punishment of the offence. Sect. 9. If a statute create a felony and say, that the offender shall suffer death, yet he shall, in such case, have the benefit of clergy; for this being a privilege allowed by the common law, cannot be taken away without express words. in As to THE SECOND POINT, viz. What is incidentally implied every statute making an offence felony. Sect. Sect. 10. It seems clear, that every such statute does, by 3 Inst. 47. necessary consequence, subject the offender to the like attainder 59. 90. Cromp. 42. and forfeiture, &c. and also does require the like construction as Dalis. 11. 22. to those who shall be accounted accessaries before or after, and Salk. 542. to all other intents and purposes, as is incidental to a felony at common law. Sect. 11. Yet where such a statute saves the corruption (3) of 3 Inst. 47. blood, it impliedly saves the descent of the land of the offender to his heir: also where it saves the land to the heir, it prevents the corruption of blood so far: and it is said, that in both cases it saves the wife's dower, because wherever an heir takes as heir, 1 Hale, 703. he shall not avoid a title of dower, in respect of the same inheritance; but notwithstanding such a saving, the land shall be forfeited for the life of the offender. Sect. 12. It is said, that misprision of felony is as well inci- 1 Hale, 652. dental to a felony created by statute as to one at common law. 2 Hale, 708. Sect. 13. If one commit an offence which is made felony by Bro. Abr. statute, and then the statute be repealed, he cannot be punished Cor. 203. as a felon in respect of that statute. Misprision of Felony. Offences more immediately against the subject, not capital, 3 Inst. 36. are either misprision of felony, or other inferior offences. 1 Hale, 374, 375. 652. 708. Sect. 1. It is said, that every felony includes misprision of 1 B. Treas. 25. felony, and may be proceeded against as a misprision only, if the king please, as hath been shewn already in chap. 5. Sect. 2. But generally misprision of felony is taken for a concealment of felony, or a procuring of the concealment thereof, whether it be felony by the common law, or by statute. 2 Rich. 3. 10. S. P. C. 32. Summary, 129. 3 Inst. 139. Sect. 3. For this offence every common person is punishable B. Treas. 25. by fine and imprisonment at common law. And by the statute 3 Inst. 173. of Westminster, 3 Edw. 1. c. 9. "If the sheriff, coroner, or any "other bailiff within a franchise, or without, for reward, or for "prayer, or for fear, or for any manner of affinity, conceal, con"sent, or procure to conceal the felonies done in their liberties; " or otherwise will not attach nor arrest such felons (there as "they may), or otherwise will not do their office, for favour "borne to such misdoers, and be attainted thereof, they shall "have one year's imprisonment, and after make a grievous fine " at the king's pleasure, if they have wherewith; and if they have "not whereof, they shall have imprisonment of three years." Sect. 4. By 3 Hen. 7. c. 1. "The justices of the peace of "every shire of this realm, for the time being, may take by their "discretion an inquest, whereof every man shall have lands and "tenements to the yearly value of forty shillings, at the least, to "enquire of the concealments of other inquests taken before "them, and afore other, of such matters and offences as are to "be enquired and presented afore justices of the peace, whereof "complaint shall be made by bill, or by bills, as well within "franchise as without. And if any such concealment be found (3) By 54 Geo. 3. c. 145. corruption of blood is abolished, except in the cases of high treason, " of petit treason, and murder, and abetting and procuring the same. 1 Hale, 619. S. P. C. 40. 3 Inst. 134. "of any inquest, as is afore rehearsed, had or made within the 66 Sect. 5. To this title of misprision of felony, that of theftbote seems not improperly reducible, which is where one not only Summary, 130. knows of a felony, but takes his goods again, or other amends, not to prosecute. F. Cor. 353. 2 Hale, 400. 2 And. 47. Cro. Eliz. 486. 536. B. 2. c. 29. s. 26, &c. B. Cor. 122.42. Sect. 6. This offence is very nearly allied to felony, and is said to have been anciently punished as such. But at this day it is punishable only with ransom and imprisonment, unless it were accompanied with some degree of maintenance given to the felon, which makes the party an accessary after the fact. Sect. 7. But the bare taking of one's own goods again which Ass. Sum. 130. have been stolen, is no offence at all, unless some favour be 1 R. Abr. 67. F. Ass. 346. shewn to the thief. (4) (4) To take any reward for helping any person to stolen goods, is made felony by 4 G. 1. c. 11. And to advertise a reward for the return of things stolen, incurs a forfeiture of fifty pounds, by 25 G. 2. c. 36. for which vide post, tit. Larceny. Book 2d. c. 17. Bract. 1. 3. c. 4. 1 Hale, 471, 472. Pult. 125. 5 Co. 110. 1 Hale, 34. 419. S. P. C. 21. CHAP. VIII. OF CASUAL DEATH AND OF DEODANDS. CAPITAL OFFENCES at common law more immediately against the subject, are of three principal kinds: FIRST, such as are committed against his life: SECONDLY, such as are against his goods: THIRDLY, such as are against his habitation. Sect. 1. There is another mixed kind of capital offences, which consists in the hindrance of the due process of public justice, which I shall consider in the second book, wherein I shall treat of the means of bringing offenders to their due punishment. Sect. 2. OFFENCES against the life of a man come under the general name of homicide, which in our law signifies the killing of a man by a man. Sect. 3. But before I treat hereof, it may not be improper to consider the killing of a man merely per infortunium, occasioned by some animal or thing without life, without the default or procurement of another man; as where one is killed by a fall from a horse or cart, &c. which though it be not properly homicide, nor punishable as a crime, yet is taken notice of by the law, as far as the nature of the thing will bear, in order to raise the greater abhorrence of murder; and the unhappy instrument or Occasion of such death is called A DEODAND, and is forfeited to the king, in order to be disposed of in pious uses by the KING'S ALMONER; as also are all such weapons whereby one man kills another. Sect. 4. It seems clearly settled, that a horse, &c. killing an a Sum. 34. 1 806. S. P. C. 20. 1 Sid. 206, 207. Lev. 136. Raym. 97. 6 Mod. 187. 3 Inst. 58. Salk. 220. infant within the age of discretion, are as much forfeited as if he 3 Inst. 58. were of age: but formerly it was holden, that a horse or cart, pult. 125. by a fall from which an infant was slain, were not forfeited; Dalt. c. 97. perhaps for this reason, (1) because the misfortune might rather 2 Keb. 719. seem owing to the indiscretion of the infant than to any default in the horse, &c. But this distinction has not been allowed of late; for the law does not ground the forfeiture on any default in the things forfeited, since it extends it to things without life, to which it is plain that no manner of fault can be imputed. Sect. 5. Also, by the opinion of our ancient authors, things fixed to a freehold, as the wheel of a mill, a bell hanging in steeple, &c. may be deodands; but by the latter resolutions they cannot, unless they were severed before the accident happened. Sect. 6. However, it is agreed by all, that a ship in salt water, S. P. C. 20, 21. whether in the open sea or within the body of a county, from Pult. 124, 125. which a man falls and is drowned, is not forfeited; because per- 1 Hale, 422. sons at sea are continually exposed to so many perils, that the C. Jac. 483. law imputes such misfortunes happening there, rather to them. 2 Roll. 23. than to the ship. Also it seems clear, that when a man riding Popham, 136. on a horse over a river is drowned through the violence of the Str. 61. stream, the horse is not forfeited, because, not that but the Co. Lit. 53. waters caused his death; (2) but it is said, that a ship by a fall from which a man is drowned in the fresh water shall be forfeited, but not the merchandize therein, because they no way contribute to his death. And by the same reason it seems, that if a man riding on the shafts of a waggon fall to the ground and break his neck, the horses and waggon only are forfeited, and not the loading, because it no way contributed to his death; for which cause, where a thing not in motion causes a man's death, that part thereof only which is the immediate cause is forfeited. As where one climbing upon the wheel of a cart while it stands still, falls from it and dies of the fall, the wheel only is forfeited: but if he had been killed by a bruise from one of the wheels Sayer, 249. being in motion, the loading also would have been forfeited, be- F. Cor. 341. cause the weight thereof made the hurt the greater; and it is a general rule, that wherever the thing which is the occasion of a man's death is in motion at the time, not only that part thereof which immediately wounds him, but all things which move together with it, and help to make the wound more dangerous, are forfeited also; for the rule is, omnia quæque movent ad mortem Bract. 1. 3. c. 5. sunt deodanda. Sect. 7. In all these cases, if the party wounded die not of his wound within a year and a day after he receive it, there shall be nothing forfeited, for the law does not look on such a wound as the cause of a man's death, after which he lives so long; but if (1) The forfeiture of deodands originated in the blind days of popery and superstition. They were designed to purchase, by propitiatory masses, an expiation for the souls of such as were snatched away by untimely death. But the presumed innocency of childhood rendered such atonement unnecessary. Therefore no deodand is due, where an infant under the age of discretion is killed by a the 283. S. P. C. 21. Plowd. 260. Keilw. 68. fall from any thing that is not in motion, 1 Comm. 300. But if the instrument move to the death either of an infant or an adult, it is forfeited, on an inquisition found, as a deodand. 3 Inst. 57. 1 Hale, 422. Quere if it had appeared that the horse had thrown him. |