such offence, shall not have the benefit of clergy. And 48 Geo.3. c.58. the 43 Geo. 3. c. 58. E. & I. further enacts, that if any E. & I. What shall be arson. person shall wilfully, maliciously, and unlawfully, set fire to any house, barn, granary, hop-oast, malt-house, stable, coach-house, out-house, mill, ware-house, or shop, whether such house, &c. shall then be in the possession of the person so setting fire to the same, or in the possession of any other person, or of any body corporate, with intent to injure or defraud his majesty, or any of his majesty's subjects, or any body corporate, such offender, his counsellors, aiders, and abettors, knowing of and privy to such offence, shall be guilty of felony without benefit of clergy. I shall follow Sir W. Blackstone in reserving for the head of "malicious mischief" in a subsequent chapter, several statutes which also relate to the crime of arson. But the following clause of the 6 Ann. c. 31. Eng. may be here stated. This statute enacts (s. 3.) that if any menial or other serServants setting vant, through negligence or carelessness, shall fire, or through negli [tcause to be fired] any dwelling-house, or out-house, gence, how pun- such servant, being convicted by the oath of a witness, +"Occasion before 2 justices of peace, shall forfeit [+£100. unto the the burning of " church-wardens of the parish where such fire shall happen, to be distributed amongst the sufferers by such fire, 6 Ann. c. 31. s. 3. Eng. fire to houses ished. in 2 Geo. 1.c.5. Ir. in such proportions as to the church-wardens shall seem just;] and in case of default or refusal to pay the same immediately after such conviction, the same being lawfully demanded by said church-wardens, such servant shall, by warrant of 2 justices of peace, be committed to some work-house or house of correction, as the said justices shall think fit, for 18 months, there to be kept 2 Geo. 1. c. 5. to hard labour. The 2 Geo. 1. c. 5. Ir. has followed s. 4. Ir. this * Buruing buildings with intent to preju lice persons who have become insurers of or upon the same, is one of the mischiefs which this act (as appears from its preamble,) was intended to remedy. +£50. unto the church-wardens of the parish where such fire shall happen, to be distributed by the grand jury at the next quarter sessions of the peace for the county where such fire shall happen, amongst the sufferers by such fire, as such grand jury shall think fit." in 2 Geo. 1. c. 5. Ir, this clause of the 6 Ann. with such deviation as is. noted in the margin. 18 Eliz. c. c. 7. s. 3. Eng. II. With respect to burglary, and its punishment, the §. 2. 18 Eliz. c. 7. Eng. enacts (s. 1.) that every person being Burglary a cafound guilty, outlawed, or confessing any burglary, (or pital felony. by the 3 W. & M. c. 9. s. 2. standing mute, or not answer- s. 1. Eng. ing directly, or challenging peremptorily above 20 jurors,) shall suffer death, without benefit of clergy. And by the 3 3 w. & M.c.9. W. & M.c. 9. s. 1. Eng. every person who shall counsel, hire, s. 1 & 2. Eng. or command any person to commit any burglary, being Accessaries, &c. thereof convicted or attainted, or being indicted thereof, guilty capitally: shall stand mute, or will not directly answer to the indictment, or shall peremptorily challenge above 12 of the jury, shall not have the benefit of his clergy. And the 5 Ann. c. 31. s. 5. Eng. (ante p. 588.) makes it a fe- 5 Ann. c. 31. lony to receive, harbour, or conceal burglars. To re- s. 5. Eng. Felony to har move certain doubts with respect to the manner of com- bour burglars. mitting burglary, the 12 Ann. st. 1. c. 7. s. 3. Eng. de- 12 Ann. st. 1. clares and enacts, that if any person shall enter into the mansion or dwelling-house of another, by day or by Breaking out of night, without breaking the same, with an intent to burglary. commit any felony, or being in such house shall commit any felony, and shall, in the night time, break the said house to get out of the same, such person shall be guilty of burglary, and be ousted of the benefit of clergy, as if such person had broke and entered the said house in the night-time with an intent to commit felony. The 11. 12 & 13 Jac. 1. c. 3. Ir. enacts, that if any person shall commit any felonious burglary, and being indicted c. 3. Ir. or appealed thereof, and thereupon found guilty by verdict, or shall confess the same upon his arraignment, or burglary, guilty will not answer directly, or shall wilfully or of malice capitally. stand mute, or shall peremptorily challenge above 20 jurors, or shall be outlawed upon the same indictment, he shall suffer death without benefit of clergy. And the houses when 11.12&13Jac.1 Principals in 9 W. 3. c. 7. Ir. contains a clause corresponding to the 9 W. 3. c. 7. Ir. also. 3 W. & M. c. 9. s. 1. Eng. supra. And the 8 Anu. c. 8. Ir. as already observed (ante p. 595.) contains a And accessaries clause corresponding to the 5 Ann. c 31. s. 5. Eng. 8 Ann. c. 8. But no Irish statute contains any provisions correspond- Ir. ing to the 12 Ann. st. 1. c. 7 supra. Nearly House-breaking felony. s. 10. Eng. Nearly allied to the crime of burglary, is that of when a capital house-breaking; in respect to which the 1 Edw. 6. c. 12. Edw. 6. c.12. Eng. enacts, that every person attainted or convicted of breaking any house by day or by night, any person being then in the same house, and thereby put in fear or dread, or being indicted or appealed of such offence, and thereupon found guilty by verdict, or who shall upon arraignment confess the same, or will not answer directly, or stand wilfully or of malice mute, shall not be admitted to the benefit of clergy. There is no statute in Ireland containing any clause similar to this of c.21.s. 4&5. Ir. the 1 Edw. 6. supra. But the 15 & 16 Geo. 3. c. 21. Ir. House-breaking contains clauses relative to house-breaking, which have been already stated, ante p. 629-630. 15& 16 Geo. 3. &r. how punished in Ireland. $1. I. CHAP. XIV. Of Offences against Private Property. As S to the crime of larceny considered with relation to the persons by whom it may be committed; the 33 zling the goods Hen. 6. c. 1. E. & I. after reciting that divers servants, Servants embez of their masters how proceeded after their death shortly after their masters' death, violently and riotously have taken and spoiled the goods which were of their 33 Hen. 6. c. 1. said masters at the time of their death, and the same dis against. E. & l. tributed amongst them; enacts, that after full information made to the chancellor by the executors (or 2 of them) of such person, of such riot, taking, and spoliation, it shall be lawful for the chancellor, by the advice of the chief justices of K. B. and C. B. and chief baron of Exc. (or 2 of them) to make out writs to such sheriffs as seem necessary, to make open proclamation in such cities or places, (2 market days within 12 days after the delivery of such writs) as to the chancellor, by the advice aforesaid, shall seem reasonable, that the said of fenders fences shall be s. 2. tices of K. B. as to such offenders, s. 3. fenders shall appear before the king in his bench, at such a day as by the said writ shall be limited, so that the said last proclamation be made by 15 days before the day of appearance; and if any such writ be returned at the day contained in the writ, and the writ be executed, and proclamation thereupon made as aforesaid, When such ofthen if such person who ought to appear by reason of deemed felony. said proclamation, make default at the day specified in said writ, and do not appear, he shall be attainted of felony. And by s. 2. if such person appear at the day, then the justices of K. B. shall have power to commit him to prison, until such offender in the said bench do Power of jusanswer to the executors in their actions for such riot and spoliation, and until such actions be determined; so that the said actions be pursued with effect, and without delay. And by s. 3. if such person be enlarged out of prison, he shall find sufficient persons to be bound by such offenders recognizance in the said bench, to keep such days as he how let to bail. or they shall have by the same court; and if the keepers of the prison whereunto any such person be committed, shall let him go at large without the order of the justices, such keeper shall forfeit £400. to the said executors ; and no protection shall be allowed in any action to be brought upon the ordinance. And the 21 Hen. 8. c. 7. 21 Hen. 8.c. 7. Eng. further enacts, that all servants, to whom caskets, jewels, money, goods or chattels, by their masters or servants embermistresses shall be delivered to keep, if they withdrawling their musters goods, in them from their said masters, &c. and go away with their care, to the them, or any part thereof, to the intent to steal the guilty of felony, same, and defraud their masters, &c. thereof, contrary to the trust and confidence in them put by their masters, &c. or being in the service of their said masters, &c,, without their assent or command, embezzle said caskets, &c. or any part thereof, or convert the same to their own use, with like purpose to steal it; shall, if such caskets, &c. be of the value of 40s, be guilty of felony, (which this statute recites to have been doubted) and punished as other felons are for felonies committed by the course of the common law. But by s. 2. this act shall not extend to any apprentice, nor to any person within the s. 1. Eng. value of 40s. 8. 2 Proviso as to persons within the age of 18 the age of 18 years, going away with his masters or misapprentices, and tresses goods or jewels, or converting the same to his own use, during the time of his apprenticeship, or being within said age of 18, but such person shall be in like 33 Hen. 8. c.5 case as before the making of this act. The 23 Hen 8. c. 5. Ir. is the corresponding statute in Ireland. And the years. Ir. s. 19. Ir. 2 Geo. 1. c. 17. 2 Geo. 1.c 17. Ir. recites the 33 Hen. 8. c. 5. Ir. and further enacts (s. 19.) that if any person be found guilty of any Benefit of clergy of the offences in said statute, or shall stand mute, or taken away from servants ember- challenge peremptorily above 20, he shall suffer death aling. without benefit of clergy. Clerks, c. emWith respect to persons acting rather in the capacity bezzling money, bills, notes, &c. of clerks, the 39 Geo. 3. c. 85. Eng. declares and enacts, to be transported that if any servant or clerk, or any person employed for 39 Geo.3. c.85. the purpose in the capacity of a servant or clerk to any Eng. person or body corporate, shall, by virtue of such employment, receive or take into his possession any money, goods, bond, bill, note, banker's draft, or other valuable security or effects, for or in the name or on the account of his master or employer, and shall fraudulently embezzle, secrete, or make away with the same, or any part thereof, such offender shall be deemed to have feloniously stolen the same from his master, &c. for whose use, or in whose name, or on whose account the same was delivered to, or taken into the possession of such servant, &c. although such money, &c. was no otherwise received into the possession [*of such master or employer, than by the actual possession] of his servant, &c.; and such offender, his adviser, procurer, aider, or abettor, shall be liable to be transported to such parts beyond the seas, as his majesty by the advice of his privy council shall appoint, for any term not exceeding 14 years, which the court shall adjudge. Analogous to 29 Geo.2.c. 16. the 39 Geo. 3. c. 85. Eng. supra, is the 29 Geo. 2. c. 16. Ir. which enacts, that if any cashier or clerk of Clerks of bankers &c. embezzling any banker, merchant, or officer entrusted with the remoney to the vaceipt or custody of public money, shall, without the conlue of £50. s. 3. ir. guilty capitally. sent These words omitted in the act. Vide 2 East P. C. p. 575. |