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I WILL not act so disagreeable a part to my readers as well as myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named; "peccatum illud horribile, inter christianos "non nominandum." (10) A taciturnity observed likewise by the edict of Constantius and Constans'; "ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura [216] "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.

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THIS the voice of nature and of reason, and the express law of God", determined to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven: so that this is 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"; though Fleta says, they should be buried alive; either of which punishments was indifferently used for this crime among the antient Goths. But now the general punishment of all felonies is the same, namely, by hanging; and this offence (being in the times of popery only subject to ecclesiastical censures) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6. revived and confirmed by 5 Eliz. c. 17. And the rule of law herein is, that if both are arrived at years of discretion, agentes et consentientes pari poena plectantur.

THESE are all the felonious offences more immediately against the personal security of the subject. The inferior

See in Rol. 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 Britt. c. 9.

o l. 1. c. 37.

P Stiern. de jure Goth. l. 3. c. 2. 93 Inst. 59.

(10) The next period of the indictment always names the offence.

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 further to add to what has already been observed in the preceding book of these Commentaries'; 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. 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 [ 217 ] two last cases, indictments are much more usual than for the absolute perpetration of the facts themselves, on account of the difficulty of proof: or, when both parties are consenting to an unnatural attempt, it is usual not to charge any assault; but that one of them laid hands on the other with intent to commit, and that the other permitted the same with intent to suffer, the commission of the abominable crime before mentioned. And, in all these cases, besides heavy fine and imprisonment, it is usual to award judgment of the pillory. (11)

THERE is also one species of battery, more atrocious and penal than the rest, which is the beating of a clerk in orders, or clergyman; on account of the respect and reverence due to his sacred character, as the minister and ambassador of peace. Accordingly it is enacted by the statute called articuli cleri, 9 Edw. II. c.3. 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 • Hawk. P. C. c. 25. § 3.

1 See Vol. III. pag. 120.

(11) The punishment of the pillory could not now be imposed for this offence, being, as I have often before noticed, abolished by 56 G.3. c. 138., except in case of perjury or subornation of perjury.

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offender will redeem by money, to be given to the bishop, or the party aggrieved, it may be sued for before the bishop; whereas otherwise to sue in any spiritual court, for civil damages for the battery, falls within the danger of praemunire.* But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commutation for penance." 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'; perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animae.

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", 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*, 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. And we may also add,

t2 Inst. 492. 620.

u Artic. Cler. Edw. II. c. 4. F.N.B.5S.
V 2 Roll. Rep. 384.

w See Vol.III. pag.127.

* See pag. 116.

y Stat, 31 Car.II. c. 2.

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. (12) 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. And indeed 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.

IX. THE other remaining offence, that of kidnapping, being [219] 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 deathb." So likewise in the civil law, the offence of spiriting away and stealing men and children, which was called plagium, and the offenders plagiarii, was punished with death. This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory. And also the statute 11 & 12 W.III. c.7., though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad, as are thus kidnapped or spirited away; by enacting, that if any captain of a merchant vessel shall (during his being abroad) force any person on shore, or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months' imprison

d

z West. Symbol. part. 2. pag. 92.

a 2 Hawk. P.C. c. 25. §4.

b Exod. xxi. 16.

с

Ff. 48.15. 1.

d Raym. 474. 2 Show. 221. Skin. 47.
Comb. 10.

(12) It is rather remarkable that this obsolete statute should still remain unrepealed.

ment. (13) And thus much for offences that more immediately affect the persons of individuals.

(13) The 58 G.3. c.38. reciting that no mode of prosecuting this offence is provided by the act of W. 3. enacts, that all offences against it may be prosecuted by indictment, or information in the court of king's bench at Westminster; and the court may issue commissions for the examination of witnesses abroad, whose depositions shall be received as evidence on the trial.

The 54 G.3. c. 101. has provided against the offence of child-stealing, and makes it felony punishable as grand larceny, by force or fraud to take or entice away any child under the age of ten years, with intent to deprive the parents or any one having lawful charge of the child, of the possession of such child; or with intent to steal any article of ornament, value or use upon or about the child; or knowingly to receive and harbour such child so taken and enticed away.

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