As to duels where the blood has once cooled, there is no doubt but he who kills another is guilty of wilful murder; or even in case of a sudden quarrel, if the person killing appear by any circumstance to be master of his temper at the time he slew the other, then it will be murder. Not that the English Law allows nothing to the frailties of human nature, but that it always exerts itself where there appears to have been a person killed in cool blood. Far this reason the seconds at a premeditated duel have been held guilty of murder, nor will the justice of the English Law be defeated where a person appears to have intended a less hurt than death, if that hurt arose from a desire of revenge in cool blood; for if the person dies of the injury it will be murder. So, also, where the revenge of a sudden provocation is executed in a cruel manner, though without intention of death, yet if it happen, it is murder.
We come now to those kinds of killing in which the Law, from the second method of reasoning we have spoken of, implies malice, and into which slaying of others, those unfortunate persons of whom we speak in the following sheets were mostly led either through the violence of their passions, or through the necessity into which they are often drawn by the commission of thefts and other crimes. Thus, were a person to kill another in doing a felony, though it be by accident, or where a person fires at one who resists his robbing him and by such firing kills another against whom he had no design, yet from the evil intention of the first act, he becomes liable for all its consequences, and the fact, by an implication of malice, will be adjudged murder. Nay, though there be no design of committing felony, but only of breaking the peace, yet if a man be slain in the tumult they will all be guilty of murder, because their first act was a deliberate breach of the Law. There is yet another manner of killing which the Law punishes with the utmost severity, which is resisting an officer, civil or criminal, in the execution of his office (arresting a person) so that he be slain, yet though he did not produce his warrant, the offence will be adjudged murder. And if persons who design no mischief at all, do unadvisedly commit any idle wanton act which cannot but be attended with manifest danger, such as riding with a horse known to kick amongst a crowd of people, merely to divert oneself by putting them in a fright, and by such riding a death ensues, there such a person will be judged guilty of murder. Yet some offences there are of so transcendent a cruelty that the Law hath thought fit to difference them from the other murders, and these are of three sorts, viz., where a servant kills his master; where a wife kills her husband; where an ecclesiastical man kills his prelate to whom he owes obedience. In all these cases the Law makes the crimes Petit Treason.
From crimes committed against the lives of men we descend next to offences against their goods, in which, that we may be the more clearly understood, we shall begin with the lowest kind of thefts. The Law calls it larceny where there is felonious and fraudulent taking and carrying away the mere personal goods of another, so long as it be neither from his person nor out of his house. If the value of such goods be under twelvepence, then it is called petty larceny, and is punishable only by whipping or other corporal punishments; but if they exceed that value, then it is grand larceny, and is punishable with death, where benefit of clergy is not allowed.
There are a multitude of offences contained under the general title of grand larceny, and, therefore, as I intend only to give my readers such a general idea of Crown Law as may serve to render the following pages more intelligible, so I shall dwell on such particulars as are more especially useful in that respect, and leave the perfect knowledge of the pleas of the Crown to be attained by the study of the several books which treat of them directly and fully. There was until the reign of King William, a doubt whether a lodger who stole the furniture of his lodgings were indictable as a felon, inasmuch as he had a special property in the goods, and was to pay the greater rent in consideration of them. To clear this, a Statute was made in the afore-mentioned reign, by which it is declared larceny and felony for any person to steal, embezzle, or purloin any chattel or furniture which by contract he was to have the use of in lodging; and by a Statute made in the reign of Henry VIII, it is enacted that all servants being of the age of eighteen years, and not apprentices, to whom goods and chattels shall be delivered by their masters or mistresses for them to keep, if they shall go away with, or shall defraud or embezzle any part of such goods or chattels, to the value of forty shillings or upwards, then such false and fraudulent act be deemed and adjudged felony.
But besides simple larceny, which is divided into grand and petty, there is a mixed larceny which has a greater degree of guilt in it, as being a taking from the person of a man or from his house. Larceny from the person of a man either puts him in fear, and then it is a robbery, or does not put him in fear, and then it is a larceny from the person, and of this we shall speak first. It is either committed without a man's knowledge, and in such a case it is excluded from benefit of clergy, or it is openly done before the person's face, and then it is within the benefit of clergy, unless it be in a dwelling-house and to the value of forty shillings, in which case benefit is taken away by an Act made in the reign of the late Queen. Larceny from the house is at this day in several cases excluded from benefit of clergy, but in others it is allowed.
Robbery is the taking away violently and feloniously the goods or money from the person of a man, putting him in fear; and this taking is not only with the robber's own hands, but if he compel, by the terror of his assault, the person whom he robs to give it himself, or bind him by such terrible oaths, that afterwards in conscience he thinks himself obliged to give it, is a taking within the Law, and cannot be purged from any delivery afterwards. Yea, where there is a gang of several persons, only one of which robs, they are all guilty as to the circumstance of putting in fear, wherever a person attacks another with circumstances of terror, as though fear oblige him to part with his money though it be without weapons drawn, and the person taking it pretend to receive it as an alms. And in respect of punishment, though judgment of death cannot be given in any larceny whatsoever, unless the goods taken exceed twelve pence in value, yet in robbery such judgment is given, let the value of the goods be ever so small.
As to crimes committed against the habitations of men, there are two kinds, viz., burglary and arson.
Burglary is a felony at Common Law, and consists in breaking and entering the mansion house of another in the night time with an intent of committing a felony therein, whether that intention be executed or not. Here, from the best opinions, is to be understood such a degree of darkness as hinders a man's countenance from being discerned. The breaking and entering are points essential to be proved in order to make any fact burglary; the place in which it is committed must be a dwelling house, and the breaking and entering such a dwelling house must be an intent of committing felony, and not a trespass; and this much I think is sufficient to define the nature of this crime, which notwithstanding the many examples which have been made of it, is still too much practised. As to arson, by which the Law understand maliciously and voluntarily burning the house of another by night or by day; to make a man guilty of this it must appear that he did it voluntarily and of malice aforethought.
Besides these, there are several other felonies which are made so by Statute, such as rapes committed on women by force, and against their will. This offence was anciently punished by putting out the eyes and cutting off the testicles of the offenders; it was afterwards made a felony, and by a statute in Queen Elizabeth's reign, excluded from benefit of clergy. By an Act made in the reign of King Henry the Seventh, taking any woman (whether maid, wife or widow) having any substance, or being heir apparent to her ancestors, for the lucre of such substance, and either to marry or defile the said woman against her will, then such persons and all those procuring or abetting them in the said violence, shall be guilty of felony, from which, by another Act in Queen Elizabeth's reign, benefit of clergy is taken. Also by an Act in the reign of King James the First, any person marrying, their former husband or wife being then alive, such persons shall be deemed guilty of felony, but benefit of clergy is yet allowed for this offence.