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CHAPTER XXV.

4. Felons, on receiving the benebt of clergy,

(though they forfeit their goods to the 01 ABBAIGNMENT, AND ITE INCIDENTS

crown,) are discharged of all clergyable Page 322-331

felonies before committed and restored 1. Arraignment is the calling of the pri

in all capacities and credits......

Page 374 gover to the bar of the court, to answer

the matter of the indictment........ 222 2. Incident hereunto are, I. The standing

CHAPTER XXIX. muie of the prisoner; for which, in petit

OF JUDGMENT, AND ITS CONSEQUENCES...... treason, and felonies of death, he shall

375 to 889 undergo the peine forte et dure. II. His confession: which is either simple; or by

1. Judgment (un.ess any matter be offered

in arrest thereof) follows upon convicway of approvement.......

.324-331

tion; being the pronouncing of that pun

ishment which is expressly ordained by CHAPTER XXVI. law.......

375 T PLEA, AND ISSUE .........

.332 to 341 2. Attainder of a criminal is the immediate 1. The pleas or defensive matter alleged by consequence, I. Of having judgment of the prisoner, may be, I. A plea to the

death pronounced upon him. II. Of jurisdiction. II. A demurrer in point of

outlawry for a capital offence................ 380 law. III. A plea in abatement. IV. A 3. The consequences of attainder are, I. special plea in bar: which is, 1st, autre

Forfeiture to the king. II. Corruption foits acquit; 2dly, autrefoits convict ; 3dly,

of blood.

38. autrefoits attaint; 4thly, a pardon. V. 4. Forfeiture to the king is, I. Of real

The general issue, not guilty ........... 332–341 estates, upon attainder:-in high-trea? Hereupon issue is joined by the clerk of son, absolutely, till the death of the late the arraigns on behalf of the king .... 341 pretender's sons ;-in felonies, for the

king's year, day, and waste ;-in mispriCHAPTER XXVII.

sion of treason, assaults on a judge, or

battery sitting the courts ; during the life OF TRIAL, AND CONVICTION ...............342 to 363 of the offender. II. Of personal estates, 1. Trials of offences, by the laws of Eng- upon conviction; in all treason, mispri

land, were and are, I. By ordeal, of either sion of treason, felony, excusable homifire or water.

II. By the corsned. Both cide, petit larceny, standing mute upon these have been long abolished. III. By arraignment, the above-named contempts battel, in appeals and approvements. IV. of the king's courts, and flight .........381-388 By the peers of Great Britain. V. By 5. Corruption of blood is an utter extincjury

..342-349 tion of all inheritable quality therein: 2. The method and process of trial by jury 80 that, after the king's forfeiture is first is

, I. The impanelling of the jury. II. satisfied, the criminal's lands escheat to Challenges: 1st, for cause; 2dly, pe

the lord of the fee; and he can never remptory. III. Tales de circumstantibus. afterwards inherit, be inherited, IV. The oath of the jury. V. The evi- have any inheritance derived through dence. VI. The verdict, either general him.....

.388-389 or special..

......350–361 8. Conviction is when the prisoner pleads,

CHAPTER XXX. or is found, guilty: whereupon, in felonies, the prosecutor is entitled to, I. OF REVERSAL OF JUDGMENT..............390 to 893 His expenses. II. Restitution of his 1. Judgments, and their consequences, may goods ......

be avoided, I. By falsifying, or reversing,

the attainder. II. By reprieve, or parCHAPTER XXVIII. don........

390

2. Attaindere may be falsified, or reversed, OF THE Benefit of CLERGY..............365 to 374 I. Without a writ of error; for matter

or the benefit thereof, was ori- dehors the 'ecord. II. By writ of error; ginally derived from the usurped juris- for mistakes in the judgment, or record. diction of the popish ecclesiastics; but III. By act of parliament; for fahath since been new-modelled by several

vour....

..390 292 365 3. When an outlawry is reversed, the party 2. It is an exemption of the clergy from any is restored to the same plight as if

other secular punishment for felony he had appeared upon the capias. than imprisonment for a year, at the When a judgment on conviction is recourt's discretion; and it is extended

versed, the party stands as if never likewise, absolutely, to lay peers, for the accused .........

192 first offence; and to all lay commoners, for the first offence also, upon condition

CHAPTER XXXI. of branding, imprisonment, or transportasion..

369-871 | OF REPRIEVE AND PARDON................894 tr 198 All felonies are entitled to the benefit of

1. A reprieve is a temporary suspension alergy, except such as are now ousted by

of the judgment, I. Ex arbitrio judicis particular statutes.................

*373 II. Ex necessitate legis; for pregnancy

or

....... 362-363

1. Clergy,

statutes......

.........

..........

in

an impeachment by the commons parliament......

.Page 398 CHAPTER XXXII. OF EXECUTION...

40% 1. Execution is the completion of human

punishment, and must be strictly performed in the manner which the law directs ....

400 2. The warrant for execution is sometimes

under the hand and seal of the judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judge's signing the calendar of pri soners, with their separate judgmenis in the margin. ......

604

insanity, or the trial of identity of pergon, which must always be tried instanter........

.......... Page 394-396 2. A pardon is a permanent avoider of the

judgment by the king's majesty in offences against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender & 227 man....

.... 396 1 The ring cannot pardon, I. Impri

sament of the subject beyond the seas. II. Offences prosecuted by appeal. III. Common nuisances. IV. Offences against popular or penal statutes, after information brought by a subjant. Nor is his pardoa pleadable to

12

COMMENTARIES

ON

THE LAWS OF ENGLAND

BOOK THE THIRD.

Of Private wrongs.

CHAPTER I.

OF THE REDRESS OF PRIVATE WRONGS BY THE MERE

ACT OF THE PARTIES.

Ar the opening of these commentaries, (a) municipal law was in general defined to be, “a

rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong."(6) From hence therefore it followed, that the primary objects of the law are the esta blishment of rights, and the prohibition of wrongs. And this occasioned(c) the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden and redi essed, by the laws of England.

*In the prosecution of the first of these inquiries, we distinguished rights into two sorts : first, such as concern, or are annexed to, the

[*2

persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these commentaries : and secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things: and these, with the means of transferring them from man to man, were the subject of the second book. I am now therefore to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.

Wrongs are divisible into two sorts or species: private wrongs and public trongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries : the latter are a breach and violation of public rights and duties, which affect the whole coinmunity, considered as a community; and are distinguished by the harsher appellation of crimes and misdo

() Book i. ch. 1. Sandio justa, jubens honesta, et prohibens contraria. Cic. 11. Philipp. 12. Bract. l. 1, c. 3.

1.I imagine this to be a misquotation of the following passage:-“Est enim lex nihil aliud, nisi recta

et a numine Deorum tracta ratio, imperans honesta, prohibens contraria." Phil. xi. 12.-COLERIDGE.

1

latrod. 22.

VOL. II.-1

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meanours. To investigate the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till thë next or concluding one.

The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insulis of the stronger, by expounding and enforcing those laws, by which rights are defined and wrongs prohibited. This remedy is therefore

principally to be sought by application to these *courts of justice; that is,

by civil suit or action. For which reason our chief employment in this buok will be to consider the redress of private wrongs by suit or action in courts. But as there are certain injuries of such a nature that some of them furnish and others require a more speedy remedy than can be had in the ordinary forms of . justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat, before I consider the several reme. dies by suit: and, to that end, shall distribute the redress of private wrongs into three several species : first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.

And first of that redress of private injuries which is obtained by the mere act of the parties. This is of two sorts: first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.

of the first sort, or that which arises from the sole act of the injured party, 18

I. The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself

, or any of these his relations, be . forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens is chargeable upon him only who began the affray.(d) For the law in this case respects the passions of the human mind, and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do

himself that immediate justice to which he *is prompted by nature, and

which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another. Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither

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? It is said that, according to 1 Salk. 407, 1 Ld. Raym. 62, and Bul. N. P. 18, a master cannot justify an assault in defence of his servant, because he might have an action per quod servitium amisit. But, according to 2 Rol. Abr. 546, D. pl. 2, Owen, 151, Bac. Abr. Master and Servant. P., such an interference by the master is lawful ; and lord Hale (1 vol. 484) says,

“ That the law had been for a master killing in the necessary defence of his servant, the husband in defence of his wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had if it had been done by himself; for they are in a mutual relation to one another.” But though, as observed by the learned commentator, the law respects the passions of the human mind, yet it does not allow this interference as an indulgence of revenge, but merely to prevent the injury, or a repetition of it; and therefore, in a plea by a father, master, &c., founded on this ground, it is necessary to state that the plaintiff would have beat the son, servant, &c., if the defendant had not interfered ; and if it be merely alleged that the plaintiff had assaulted or beat, &c., it will be demurrable, for if the assault on the master, &c. be over, the servant cannot strike by way of revenge, but merely in order to prevent an injury. 2 Stra. 953. When a person does not stand in either of these relations, he cannot justify an interference on behalf of the party injured, but merely as an indifferent person, to preserve the peace. 2 Stra. 954.–Chitty.

can it be :). fact, taken away by the law of society. In the English law par. ticularly it is held an excuse for breaches of the peace, nay, even for homicide itself: but care must be taken that the resistance does not exceed the bounde of mere defence and prevention : for then the defender would himself become an aggressor.

II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them wherever he happens to find them, 80 it be not in a riotous manner, or attended with a breach of the peace.(e) The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of bis property again without force or terror, the law favours and will justify his proceeding. But as the public peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption *shall never be exerted where such exertion must occasion strife and bodily con

[*5 tention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize

I him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen ; f) vut must have recourse to an action at law.'

III. As recaption is a remedy given to the party himself for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property is by entry on lands and tenements when another person without any right has taken possession thereof. This depends in some measure on like (9) 3 Inst. 134. Hal. Anal. 8 46.

() 2 Roll. Rep. 55, 56, 208. 2 Roll. Abr. 565, 566. 'In the case of personal property improperly detained or taken away, it may be retaken from the house and custody of the wrong-doer, even without a previous request; but, unless it was seized or attempted to be seized forcibly, the wner cannot justify doing any thing more than gently laying his hands on the wrong-doer in order to recover it, (8 T. R. 78. 2 Roll. Abr. 56, 208. 2 Roll. Abr. 565, pl. 50. 2 Leonard 302. Selw. N. P. tit. Assault and Battery ;) nor can be without leave enter the door of a third person, not privy to the wrongful detainer, to take his goods therefrom. 2 Roll. Abr. 55, 56, 308. 2 Roll

. Å br. 565, I. pl. 2. Bac. Abr. Trespass, F.-Chitty. If the possession of one's property be held by another, the owner may take possession if he can do so without tumult and riot or breach of the peace; but he has no right to use unreasonable violence. Davis vs. Whitridge, 2 Strobh. 232.

The owner of personal property left in the possession of a third person may by his uwn act repossess himself of such property, though it be taken from the possession of such third person by virtue of a writ of replevin; and the plaintiff in the replevin cannot maintain trespass against m. Spencer vs. McGowen, 13 Wend. 256. One whose chattel has been wrongfully taken from him may enter upon the land of the taker for the purpose of retaking it, without subjecting himself even to nominal damages. Chambers vs. Bedell, 2 Watts & Serg. 225.--SHARSWOOD.

* With respect to land and houses also, resumption of possession by the mere act of the party is frequently allowed. Thus, if a tenant omit at the expiration of his tenancy to deliver up possession, the landlord may legally, in his absence, break open the outer door and resume possession, though some articles of furniture remain therein ; and, if the landlord put his cattle on the land, and the tenant distrain them as damage-feasant, he may be sued. 1 Bing. R. 158. 7 T. R. 431, 432. 1 Price R. 53. And. 109. 6 Taunt. 202. If the landlord, in resuming possession, be guilty of a forcible entry with strong hand, or other illegal breach of the peace, he will be liable to an indictment. 7 T. E. 432.3 T. R. 295. 6 Taunt. 202. 8 T. R. 364, 403. But the circumstance of the owner of property using too much force in regaining possession, but taking care to avoid personal injury to the party resisting, will not enable the latter to sue him. See cases in

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