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 [218] 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.

"Artic. Cler. Edw. II. c. 4. F.N.B, 53.

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

z West. Symbol. part. 2. pag. 92. 22 Hawk. P. C. c. 25. §4.

Exod. xxi. 16.

C

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.

THE only two offences, that more immediately affect the habitations of individuals or private subjects, are those of arson and burglary.

1. ARSON, ab ardendo, is the malicious and wilful burning the house or out-house of another man. This is an offence of very great malignity, and much more pernicious to the public than simple theft: because first, it is an offence against that right of habitation, which is acquired by the law of nature as well as by the laws of society; next, because of the terror and confusion that necessarily attend it; and lastly, because in simple theft the thing stolen only changes its master, but still remains in esse for the benefit of the public, whereas by burning the very substance is absolutely destroyed. It is also frequently more destructive than murder itself, of which too it is often the cause: since murder, atrocious as it is, seldom extends beyond the felonious act designed; whereas fire too frequently involves in the common calamity persons unknown to the incendiary, and not intended to be hurt by him, and friends as well as enemies. For which reason the

civil law punishes with death such as maliciously set fire to houses in towns, and contiguous to others; but is more merciful to such as only fire a cottage, or house, standing, by itself.

.

OUR English law also distinguishes with much accuracy [221] upon this crime. And therefore we will enquire, first, what

Ff. 48. 19. 28. $12.

is such a house as may be the subject of this offence: next, wherein the offence itself consists, or what amounts to a burning of such house; and lastly, how the offence is punished.

1. Not only the bare dwelling-house, but all out-houses that are parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson b. And this by the common law; which also accounted it felony to burn a single barn in the field, if filled with hay or corn, though not parcel of the dwelling-house. The burning of a stack of corn was antiently likewise accounted arson. And indeed all the niceties and distinctions which we meet with in our books, concerning what shall, or shall not, amount to arson, seem now to be taken away by a variety of statutes; which will be mentioned in the next chapter, and have made the punishment of wilful burning equally extensive as the mischief. The offence of arson

(strictly so called) may be committed by wilfully setting fire to one's own house, provided one's neighbour's house is thereby also burnt; but if no mischief is done but to one's own, it does not amount to felony, though the fire was kindled with intent to burn another's. © For by the common law no intention to commit a felony amounts to the same crime; though it does, in some cases, by particular statutes. However such wilful firing one's own house, in a town, is a high misdemesnor, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour ˆ (14).

b1 Hal. P.C.567.

c3 Inst.67.

d1 Hawk. P. C. c.39. § S.

f

e Cro. Car. 377. 1 Jon. 351.

1 Hal. P. C. 568. 1 Hawk. P. C. c.39. § 15.

(14) The 43 G.3. c. 58., which I have already had occasion to cite several times, makes it a capital felony wilfully and maliciously to set fire to any house, barn, granary, hop-oast, outhouse, mill, warehouse, or shop, whether the same shall then be in the party's own possession or not, if it be done with intent to injure or defraud his majesty, any of his subjects, or any body corporate. The principal object of this enactment was to comprise the cases of persons burning houses, mills, &c., of which they are tenants or owners, to the injury of their landlords, or to defraud the insurers. But it is not necessary to prove any distinct malice, or intent to defraud, beyond that which the law necessarily inplies from the act of deliberate arson.

This