CHAPTER THE FIFTEENTH.
OF OFFENCES AGAINST THE PERSONS OF
INDIVIDUALS.

HAVING in the preceding chapter confidered the principal crime or public wrong, that can be committed againft a private fubject, namely, by deftroying his life; I proceed now to enquire into fuch other crimes and mifdemefnors, as more peculiarly affect the fecurity of his perfon, which living.

OF thefe fome are felonious, and in their nature capital; others are fimple mifdemefnors, and punifhable with a lighter animadverfion. Of the felonies the firft is that of mayhem.

I. MAYHER, mahemium, was in part confidered in the preceding volume^a , as a civil injury: but it is alfo looked upon in a criminal light by the law; being an attrocious breach of the king's peace, and an offence tending to deprive him of the aid and affiftance of his fubjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the ufe of fuch of his members, as may render his the lefs able in fighting, either to defend himfelf, or to annoy his adverfary ^b. And therefore the cutting off, or difabling, or weakening a man's

.{FS}
^a See Vol. III. pag. 121.
^b Brit. l. 1. c. 25. 1 Hawk. P. C. 111.
.{FE}
hand
.P 206
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
hand or finger, or ftriking out his eye or foretooth, or depriving him of thofe parts, the lofs of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear, or nofe, or the like, are not held to be mayhems at common law; becaufe they do not weaken but only disfigure him.

BY the antient law of England he that maimed any man, whereby he loft any part of his body, was fentenced to lofe the like part; membrum pro membro^c : which is ftill the law in Sweden^d . But this went afterwards out of ufe: partly becaufe the law of retaliation, as was formerly fhewn^e , is at beft an inadequate rule of punifhment; and partly becaufe upon a repetition of the offence the punifhment could not be repeated. So that, by the common law, as it for a long time ftood, mayhem was only punifhable with fine and imprifonement^f ; unlefs perhaps the offence of mayhem by caftration, which all our old writers held to be felony; “ et fequitur aliquando poena capitalis, “aliquando perpetuum exilium, cum omnium bonorum adeptione^g .” And this, although the mayhem was committed upon the figheft provocation^h .

BUT febfequent ftatutes have put the crime and punifhment of mayhem more out of doubt. For, firft, by ftatute 5 Hen. IV. c. 5. to remedy a mifchief that then previaled, of beating, wounding, or robbing a man, and them cutting out his tongue or putting out his eyes, to prevent him from being an evidence againft them, this offence is declared to be felony, if done of malice prepenfe; that is, as fir Edward Cokeⁱ explains it, voluntarily

.{FS}
^c 3 Inft. 118. – Mes, fi la pleynte foit faite de femme qu' avere tollet a bome fes members, en tiel cafe perdra la feme la une meyn per jugement, come le membre dount ele avera trefpaffe. (Brit. c. 25.)
^d Stiernhook de jure Sueon. l. 3. c. 3.
^e See pag. 12.
^f 1 Hawk. P. C. 112.
^g Bract. Fol. 144.
^h Sir Edward Coke (3 Inft. 62.) has tranfcribed a record of Henry the third's time, (Clauf. 13 Hen. III. m. 9.) by which a gentleman of Somerfetfhire and his, wife appear to have been apprehended and committed to prifon, being indicted for dealing thus with John the monk, who was caught in adultery with the wife.
ⁱ 3 Inft. 62.
.{FE}
and
.P 207
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
and of fet purpofe, though done upon a fudden occafion. Next, in order of time, is the ftatute 37 Hen. VIII. c. 6. which directs, that if a man fhall malicioufly and unlawfully cut off the ear of any of the king's fubjects, he fhall not only forfeit treble damages to the party grieved, to be recovered by action of trepafs at common law, as a civil fatisfaction; but alfo 10 l. by way of fine to the king, which was his criminal amercement. The laft ftatute, but by far the moft fevere and effectual of all, is that of 22 & 23 Car. II. c. 1. called the Coventry act; being occafioned by a affault on fir John Coventry in the ftreet, and flitting his nofe, in revenge (as was fuppofed) for fome obnoixious words uttered by him in parliament. By this ftatute it is enacted, that if any perfon fhall of malice aforethought, and by lying in wait, unlawfully cut out or difable the tongue, put out an eye, flit the nofe, cut off a nofe or lip, or cut off or difable any limb or member of any other perfon, with intent to maim or to disfigure him; fuch perfon, his counfellors, aiders, and abettors, fhall be guilty of felony without benefit of clergy^k .

.{FS}
^k On this ftatute 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 flitting the nofe of Mr Crifpe, Coke's brother in law. The cafe was fomewhat-fingular. The murder of crifpe was intended, and he was left for dead, being terribly hacked and disfigured with a hedgebill; but he recovered. Now the bare intent to murder is no felony: but to disfigure, with an intent to disfigure, is made fo by this ftatute; on which they were therefore indicted. And Coke, who was a difgrace to the profeffion of the law, had the effirontery to freft his defence upon this piont, that the affault was not committed with an intent to disfigure, but with an intent to murder; and therefore not within the ftatute. But the court held, that if a man attacks another to murder him with fuch an inftrument as a hedge bill, which cannot but endanger the disfiguring him; and in fuch attack happens not to kill, but only to disfigure him; he may be indicted on this ftatute: and it fhall be left to the jury whether it where not a defign to murder by disfiguring, and confequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of fuch previousintent to disfigure, in order to effect their principal intent to murder, and they were both condemned and executed (State Trials. VI. 212.)
.{FE}
THUS
.P 208
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
THUS much for the felony of mayhem: to which may be added the offence of wilfully and malicioufly fhooting at any perfon, which may endanger either killing or maiming him. This, though no fuch evil confequence enfues, is made felony without benefit of clergy by ftatute 9 Geo. I. c. 22. and thereupon one Arnold was convicted in 1723, for fhooting at lord Onflow; but, being half a madman, was never executed, but confined in prifon, where he died about thirty years after.

II. THE fecond offence, more immediately affecting the perfonal fecurity of individuals, relates to the female part of his majefty's fubjects; being that of their forcible abduction and marriage; which is vulgarly called ftealing an hirefs. For by ftatute 3 Hen. VII. c. 2. it is enacted, that if any perfon fhall for lucre take any woman, maid, widow, or wife, having fubftance either in goods or lands, or being heir apparent to her anceftors, contrary to her will; and afterwards fhe be married to fuch mifdoer, or by his confent to others, or defiled; fuch perfon, and all his acceffories, fhall be deemed principal felons: and by ftatute 39 Eliz. c. 9. the benefit of clergy is taken away from all fuch felons, except acceffories after the offence.

IN the conftruction of this ftatute it hath been determined, 1. That the indictment muft allege that the taking was for lucre, for fuch are the words of the ftatute^l . 2. In order to fhew this, it muft appear that the woman has fubftance either real or perfonal, or is an heir apparent^m . 3. It muft appear that fhe was taken away againft her will. 4. It muft alfo appear, that fhe was afterwards married, or defield. And though poffibly the marriage or defilement might be by her fubfeqeunt confent, being won thereunto by flatteries after the taking, yet this is felony, if the firft taking were againft her willⁿ : and fo vice

.{FS}
^l 1 Hawk. P. C. 110.
^m 1 Hal. P. C. 660. 1. Hawk. P. C. 109.
ⁿ 1 Hal. P. C. 660.
.{FE}
verfa,
.P 209
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
verfa, if the woman be originally taken away with her won confent, yet if fhe afterwards refufe to continue with the offender, and be forced againft her will, fhe may, from that time, as properly be faid to be taken againft her will, as if fhe never had given any confent at all; for, till the force was put upon her, the was in her own power^o . 5. It is held that a woman, thus taken away and married, may be fworn and give evidence againft the offender, though he is her hufband de facto; contrary to the general rule of law: becaufe he is no hufband de jure, in cafe the actual marriage was alfo againft her will^p . In cafes indeed where the actual marriage is good, by the confent of the inveigled woman obtained after her forcible abduction, fir Matthew Hale feems to queftion how far her evidence fhould be allowed: but other authorities ^q feem to agree, that it fhould even then be admitted; efteeming it abfurd, that the offender fhould thus take advantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, fhould (by a forced conftruction of law) be made ufe of to ftop the mouth of the moft material witnefs againft him.

AN inferior degree of the fame kind of offence, but not attended with force, is punifhed by the ftatute 4 & 5 Ph. & Mar. c. 8. which enacts, that if any perfon, above the age of fourteen, unlawfully fhall convey or take away any woman child unmarried, (which is held^r to extend to baftards as well as to legitimate children) within the age of fixteen years, from the poffeffion and againft the will of the father, mother, guardians, or governors, he fhall be imprifoned two year, or fined at the difcretion of the juftices: and if he deflowers fuch maid or woman child, or, without the confent of parents, contracts matrimony with her, he fhall be imprifoned five years, or fined at the difcretion of the juftices, and the fhall forfeit all her lands to her next of kin, during the life of her faid hufband. So that

.{FS}
^o 1 Hawk. P. C. 110.
^p 1 Hal. P. C. 661.
^q Cro. Car. 488. 6 keb. 193. Seate. Trials. V. 455.
^r Stra. 1162.
.{FE}

VOL. IV.

C c

.P 210
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
as thefe ftolen marriages, under the age of fixteen, were ufually upon mercenary views, this act, befides punifhing the fuducer, wifely remoed the temptation. But this latter part of the act is now rendered almoft ufelefs, by profifions of a very different kind, which make the marriage totally void ^g , in the ftatute 26 Geo. II. c. 33.

III. A THIRD offence, againft the female part alfo of his majefty's fubjects, 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 againft her will. This, by the Jewifh law^t , was punifhed with death, in cafe the damfel was betrothed to another man; and, in cafe fhe was not betrothed, then a heavy fine of fifty fhekels was to be paid to the damfels's father, and fhe was to be the wife of the ravifher all the days of his life; without that power of divorce, which was in general permitted by the mofaic law.

THE civil law^u punifhes the crime of ravifhment with death and confifcation of goods: under which it includes both the offence of forcible abduction, or taking away a woman from her friends, of which we laft fpoke; and alfo the prefent offence of forcibly difhonouring them; either of which, without the other, is in that law, fufficient to conftitute a capital crime. Alfo the ftealing away a woman from her parents or guardians, and debauching her, is equally penal by the ecperor's edict, whether fhe confent or is forced: “five volentibus, five 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 laws fuppofe never to go aftray, without the feduction and arts of the other fex: and therefore, by reftraining and making fo highly penal the folicitations of the men, they meant to fecure effectually the honorou of the women

.{FS}
^s See vol. I. pag. 437. & c.
^t Dcut. xxii. 25.
^u Cod. 9. tit. 13.
.{FE}
“Si
.P 211
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
“Si enim ipfi raptores metu, vel atrocitate poenae, ab hujufmodi facinore fe temperaverint, mulli mulieri, five volenti, five nolenti, “peccandi locus relinquetur; quia hoc ipfum velle mulierum, ab infidiis nequiffimi hominis, qui meditatur rapinam, inducitur. Nifi “etenim eam folicitaverit, nifi odiofis artibus circumvenerit, non “faciet eam velle in tantum dedecus fefe prodere.” But our Englifh law does not entertain quite fuch fublome ideas of the honour of either fex, as to lay the blame of a matual fault upon one of the tranfgreffors only: and therefore makes it a neceffary ingredient in the crime of rape, that it muft be againft the woman's will.

RAPE was punifhed by the Saxon laws, partucularly thofe of king Athelftan^w , with death: which was alfo agreeable to the old Gothic or Scandinavian conftitutios^x . But this was afterwards thought too hard: and in it's ftead another fevere, but not capital, punifhment was inflicted by William the conqueror; viz. caftration and lofs of eyes^y ; which continued till after Bracton wrote, in the reign of Henry the third. But in order to prevent malicious accufations, it was then the law, (and, it feems, ftill continues to be fo in appeals of rape^z ) that the woman fhould immediately after, “dum recens fuerit maleficium,” go to the next town, and there make difcovery to fome credible perfons of the injury fhe has fuffered; and afterwards fhould acquaint the high conftable of the hundred, the coroners, and the fheriff with the outrage^a . This feems to correfpond in fome degree with the laws of Scotland and Arragon ^b, which reqquire that complaint muft be made within twenty four hours: though afterwards by ftatute Weftm. 1 c. 13. the time of limitation in England was extended to forty days. At prefent there is no time of limitation fixed: for, as it is ufually now punifhed by indictment at the fuit of the king, the maxim of law takes place that nullum tempus occurrit regi: but the jury will rarely give credit to a ftale

.{FS}
^w Bracton. l. 3. c. 28.
^x Stiernh. de jure Sucon. l. 3. c. 2.
^y LL. Guil. Cunqu. P .C. 19.
^z 1 Hal. P. C. 632.
^a Glanv. l. 14. c. 6. Bract. L. 3. c. 28.
^b Barrington. 107.
.{FE}

Cc2

complaint.

.P 212
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
complaint. During the former period alfo it was held for law^c , that the woman (by confent of the judge and her parents) might redeem the offender from the execution of his fentence, by accepting him for her hufband; if he alfo was willing to agree to the exchange, but not otherwife.

IN the 3 Edw. I. by the ftatute Weftm. 1. c. 13. the punifhment of rape was much mitigated: the offence itfelf being reduced to a trefpafs, if not profecuted by the woman within forty days, and fubjecting the offender only to two years imprifonment, and a fine at the king's will. But, this lenity being productive of the moft terrible confequences, it was in ten years afterwards, 13 Edw I. found neceffary to make the offence of rape felony, by ftatute Weftm. 2. c. 34. And by ftatute 18 Eliz. c. 7. it is made felony without benefit of clergy: as is alfo the abominable wickednefs of carnally knowing or abufing any woman child under the age of ten years; in which cafe the confent or non-confent is immaterial, as by reafon of her tender years fhe is incapable of judgment and difcretion. Sir Matthew Hale is indeed of opinion, that fuch profligate actions committed on an infant under the age of twelve years, the age of female difcretion by the common law, either with or without confent, amoiunt ot rape and felony; as well fince as before the ftatute of queen Elizabeth^d : but he law has in general been held only to extend to infants under ten.

A MALE infant, under the age of fourteen years, is prefumed by law incapable to commit a rape, and therefore it feems cannot be found guilty of ti. For though in other felonies malitia fupplet aetatem, as has in fome cafes been fhewn; yet, as to this particular fpecies of felony, the law fuppofes an imbecillity of body as well as mind^e.

.{FS}
^c Glanv. l. 14. c. 6. Bract. L. 3. c. 28.
^d 1 Hal. P. C. 631.
^e Ibid.
.{FE}
THE
.P 213
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
THE civil law feems to fuppofe a proftitute or common harlot incapable of any injuries of this kind^f : not allowing any punifhment for violating the chaftity of her, who hath indeed no chaftity at all, or at leaft hath no regard to it. But the law of England does not judge fo hardly of offenders, as to cut off all opportunity of retreat even from common ftrumpets, and to treat them as never capable of amendment. It therefore holds it to be felony to force even a concubine or harlot; becuafe the woman may have forfaken that unlawful courfe of life^g : for, as Bracton well obferves^h , “licet meretrix fuerit antea, certe tune “temporis non fuit, cum reclamando nequitiae ejus confentire noluit.”

AS to the material facts requifite to be given in evidence and proved upon an indictment of rape, they are of fuch a nature, that though neceffary to be known and fettled, for the conviction of the guilty and prefervation of the innocent, and therefore are to be found in fuch criminal treatifes as difcourfe of thefe matters in detail, yet they are highly improper to be publicly difcuffed, except only in a court of juftice. I fhall therefore merely add upon this head a few remarks from fir Matthew Hale, with regard to the competency and credibility of witneffes; which may, falvo pudore, be confidered.

AND, firft, the party ravifhed may give evidence upon oath, and is in law a competent witnefs; but the credibility of her teftimony, and how far forth fhe is to be believed, muft be left to the jury upon the circumftances of fact that concur in that teftimony. For inftance: if the witnefs be of good fame; if fhe prefently difcovered the offence, and made fearch for the offender; if the party accufed fled for it; thefe and the like are concurring circumftances, which give greater probability to her evidence. But, on the other fide, if fhe be of evil fame, and ftands unfupported by others; if the concealed the injury for any confiderable time after fhe had opportunity to complain; if the

.{FS}
^f Cod. 9. 9. 22. Ff. 47. 2. 39.
^g 1 Hal. P. C. 629. 1. Hawk. P. C. 108.
^h fol. 147.
.{FE}
place,
.P 214
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
place, where the fact was alleged to be committed, was where it was poffible fhe might have been heard, and fhe made no outcry; thefe and the like circumftances carry a ftrong, but not conclufive, prefumption that her teftimony is falfe or feigned.

MOREOVER, if the rape be charged to be committed on an infant under twelve years of age, fhe may ftill be a competent witnefs, if fhe hath fenfe and underftanding to know the nature and obligations of an oath; and, even if fhe hath not, it is thought by fir Matthew Haleⁱ that fhe ought to be heard without oath, to give the court information; though that alone will not be fufficient to convict the offender. And he is of this opinion, firft, becaufe the nature of the offence being fecret, there may be no other poffible proof of the actual fact; though afterwards there may be concurrent circumftances to corroborate it, proved by other witneffes: and, fecondly, becaufe the law allows what the child told her mother, or other relations, to be given in evidence, fince the nature of the cafe admits frequently of no better proof; and there is much more reafon for the court to hear the narration of the child herfelf, than to receive it at fecond hand from thofe who fwear they heard her fay fo. And indeed it is now fettled, that infants of any age are to be heard; and, if they have any idea of an oath, to be alfo fworn: it being found by experience that infants of very tender years often give the cleareft and trueft teftimony. But in any of thefe cafes, whether the child be fworn or not, it is to be wifhed, in order to render her evidence credible, that there fhould be fome concurrent teftomony, of tome, place and circuftances, in order to make out the fact; and that the conviction fhould not be grounded fingly on the unfupported accufation of an infant under years of difcretion. There may be therefore, in many cafes of this nature, witneffes who are competent, that is, who may be admitted to be heard; and yet, after being heard, may prove not to be credible, or fuch as the jury is bound to believe. For one excel-

.{FS}
ⁱ 1 Hal. P. C. 634.
.{FE}
lence
.P 215
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
lence of the trial by jury is, that the jury are triors of the credit of the witneffes, as well as of the truth of the fact.

“IT is true, fays this learned judge^{k ,} that rape is a moft “deteftable crime, and therefore ought feverely and impartially “to be punifhed with death; but it muft be remembered, that “it is an accufation eafy to be made, hard to be proved, but “harder to be defended by the party accufed, though innocent.” He then relates two very extraordinary cafes of malicious profecutions for this crime, that had happened within his own obfervation; and concludes thus: “I mention thefe inftances, that “we may be the more cautious upon trials of offences of this “nature, wherein the court and jury may with fo much eafe be “impofed upon, without great care and vigilance; the heinoufnefs of the offence many times tranfporting the judge and jury “with fo much indignation, that they are overhaftily carried to “the conviction of the perfon accufed thereof, by the confident “teftimony of fometimes falfe and malicious witneffes.”

IV. WHAT has been here obferved, efpecially with regard to the manner of proof, which ought to be the more clear in proportion as the crime is the more deterftable, may be applied to another offence, of a ftill deeper malignity; the infamous crime againft nature, committed either with man or beaft. A crime, which ought to be ftrictly and impartially proved, and then as ftrictly and impartially punifhed. But it is an offence of fo dark a nature, fo eafily charged, and the negative fo difficult to be proved, that the accufation fhould be clearly made out: for, if falfe, it deferves a punifhment inferior only to that of the crime itfelf.

I WILL not act fo difagreeable part, to my readers as well as myfelf, as to dwell any longer upon a fubject, the very mention of which is a difgrace to human nature. It will be more eligible to imitate in this refpect the delicacy of our Englifh law, which

.{FS}
^k 1 Hal. P. C. 635.
.{FE}
treats
.P 216
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
treats it, in it's very indictments, as a crime not fit to be named; “peccatum illud horribile, inter chriftianos non nominandum.” A taciturnity obferved likewife by the edict of Conftantius and Conftans^l : “ubi fcelus eft id, quod non proficit fcire, jubemus infurgere leges, armari jura gladio ultore, ut exquifitis poenis fubdantur infames, qui funt, vel qui futuri funt, rei.” Which leads me to add a work concerning it's punifhment.

THIS the voice of nature and of reafon, and the exprefs law of God^m , determine to be capital. Of which we have a fignal inftance, long before the Jewifh difpenfation, by the deftruction of two cities by fire from heaven: fo that this is an univerfal, not merely a provincial, precept. And our antient law in fome degree imitated this punifhment, by commanding fuch mifcreants to be burnt to deathⁿ ; though Fleta^o fays they fhould be buried alive: either of which punifhments was indifferently ufed for this crime among the antient Goths^p . But now the general punifhment of all felonies is the fame, namely, by hanging: and this offence (being in the times of popery only fubject ot ecclefiaftical cenfures) was made fingle felony by the ftatute 25 Hen. VIII. c. 6. and felony without benefit of clergy by ftatute 5 Eliz. c. 17. And the rule of law herein is, that, if both are arrived at years of difcretion, agentes et confentientes pari poena plectantur^q .

THESE are all the felonious offences, more immediately againft the perfonal fecurity of the fubject. The inferior offences, or mifdemefnors, that fall under this head, are affaults, batteries, wounding, falfe imprifonment, and kidnapping.

V, VI, VII. WITH regard to the nature of the three firft of thefe offences in general, I have nothing farther to add to what has already been obferved in the preceding book of thefe com-

.{FS}
^l Cod. 9. 9. 31.
^m Levit. xx. 13. 15.
ⁿ Brit. c. 9.
^o l. 1. c. 37.
^p Stiernh. de jure Goth. l. 3. c. 2.
^q 3 Inft. 59.
.{FE}
mentaries^r;
.P 217
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
mentaries^r ; when we confidered them as private wrongs, or civil injuries, for which a fatisfaction 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 fubjects, they are alfo indictabel and punifhable with fine and imprifonment; or with other ignominious corpora penalties, where they are committed with any very atrocious defign^s . As in cafe of an affault with an intent to murder, or with an intent to commit either of the crimes laft fpoken of; for which intentional affaults, in the two laft cafes, indictments are much more ufual, than for the abfolute perpetration of the facts themfelves, on account of the difficulty of proof: and herein, befides heavy fine and imprifonment, it is ufual to award judgment of the pillory.

THERE is alfo one fpecies of battery, more atrocious and penal than the reft, which is the beating of a clerk in orders, or clergyman; on account of the refpect and reverence due to his facred character, as the minifter and embaffador of peace. Accordingly it is enacted by the ftatute called articuli cleri, 9 Edw. II. c. 3. that if any perfon lay violent hands upon a clerk, the amends for the peace broken fhall be before the king; that is by indictment in the king's courts: and the affailant may alfo be fued before the bifhop, that excommunication or bodily penance may be impofed: which if the offender will redeem by money, to be given to the bifhop, or the party grieved, it may be fued for before the bifhop; whereas otherwife to fue in any fpiritual court, for civil damages for the battery, falls within the danger of praemunire^t . But fuits are, and always were, allowable in the fpiritual court, for money agreed to be given as a commutation for penance^u . So that upon the whole it appears, that a perfon guilty of fuch brutal behaviour to a clergyman, is fubject to three kinds of profecution, all of which may be purfued for one and the fame offence: an indictment, for the breach

.{FS}
^r See Vol. III. 120.
^s 1 Hawk. P. C. 65.
^t 2 Inft. 492. 620.
^u Arti. Cler. 9 Edw. IL. 4. F. N. B. 55.
.{FE}

VOL. IV.

D d

of

.P 218
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
of the king's peace by fuch affault and battery; a civil action, for the fpecial damage fuftained by the party injured; and a fuit in the ecclefiaftical court, firft, pro correctione et falute animae by enjoining penance, and then again for fuch fum of money as fhall be agreed on for taking off the penance enjoined: it being ufual in thofe courts to exchange their fpiritual cenfures for a round compenfation in money^{v ;} perhaps becaufe poverty is generally efteemed by the moralifts the beft medicine pro falute animae.

VIII. THE two remaining crimes and offences, againft the perfons of his majefty's fubjects, are infringements of their natural liberty: concerning the firft of which falfe imprifonment, it's nature and incidents, I muft content myfelf with referring the ftudent to what was obferved in the preceding volume^w , when we confidered it as a mere civil injury. But, befides the private fatisfaction given to the individual by action, the law also demands public vengeance for the breach of the king's peace, for the lofs which the ftate fuftains by the confinement of one of it's members, and for the infringment of the good order of fociety. We have before feen^x , that the moft atrocious degree of this offence, that of fending any fubject of this realm a prifoner into parts beyond the feas, whereby he is deprived of the friendly affiftance of the laws to redeem him from fuch his captivity, is punifhed with the pains of praemunire, and incapacity to hold any office, without any poffibility of pardon^y . Inferior degrees of the fame offence of falfe imprifonment are alfo punifhable by indictment (like affaults and batteries) and the deliquent may be fined and imprifoned^z . And indeed ^a there can be no doubt, but that all kinds of crimes of a public nature all difturbances of the peace, all oppreffions, and other mifdemefnors whatfoever, of a notorioufly evil example, may be indicted at the fuit of the king.

.{FS}
^v 2 Rol. Rep. 384.
^w See Vol. III. pag. 127.
^x See pag. 116.
^y Stat. 31 Car. II. c. 2.
^z Weft. Symbol. part. 2. pag. 92.
^a 1 Hawk. P. C. 210.
.{FE}
IX. THE
.P 219
PUBLIC WRONGS.
BOOK IV.
Ch. 15.
IX. THE other remaining offence, that of kidnapping, being the forcible abduction or ftealing away of man, woman, or child from their own country, and felling them into another, was capital by the Jewifh law, “He that ftealeth a man, and felleth “him, or if he be found in his hand, he fhall furely be put to “death.^b” So likewife in the cvil law, the offence of fpiriting away and ftealing men and children, which was called plagium, and the offenders plagiarii, was punifhed with death^c . This is unqueftionably a very heinous crime, as it robs the king of his fubjects banifhes a man from his country, and may in it's confhips; and therefore the common law of England has punifhed it with fine, imprifonment, and pillory^d . And alfo the ftatute 11 & 12 W. III. c. 7. though principally intended againft pirates, has a claufe that extends to prevent the leaving of fuch perfous abroad, as are thus kidnapped or fpirited away; by enacting, that if any captain of a merchant veffel fhall (during his being abroad) force any perfon on fhore, or wilfully leave him behind, or refufe to bring home all fuch men as he carried out, if able and defrous to return, he fhall fuffer three months imprifonment. And thus much for offences that more immediately affect the perfons of individuals.

.{FS}
^b Exod. xxi, 16.
^c Ff. 48. 15. 1.
^d Raym. 474. 3 Show, 221. Skinn 47. Comb. 10.
.{FE}
D d 2
.P 220
PUBLIC WRONGS.
BOOK IV.