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that I particularly explain what the law considers as malice prepense.—Malice prepense then, is an inclination of the mind, not so properly bearing ill-will to the person killed, the commonly received notion, as containing any evil design, the dictate of a wicked and malignant heart.—The discovery of this secret inclination of the mind must arisc, because it cannot any otherwise, only from the external effects of it; and by such evidence, the malignity of the mind is held either express in part or implied in law.—Thus, malice prepense is held to be express in fact, when there is evidence of a laying in wait; or of menacings antecedent, grudges, or deliberate compasings to do some bodily harm. Even upon a sudden provocation, the one beating or treating another in an excessive and cruel manner, so that he dies, though he did not intend his death, the slayer displays an express evil design, the genuine sense of malice. This is evidence of a bad heart; and the act is equivalent
to a deliberate act of slaughter. So any willful action, likely in its nature to kill, without its being aimed at any person in particular: an enmity to all mankind. So if two or more come to do any felony, or any unlawful act, the probable consequence ef which might be bloodshed, and one of them kills a man, it is murder in them all, be. cause of the unlawful act, the malitia precogitata, or evil intended—But malice prepense is held to be implied in law, when one kills an officer of justice in the execution of his office, or any person assisting him, though not specially called. Or when without sufficient provocation, and no affront by words or gestures only is a sufficient provocation, a man suddenly kills another. on a chiding between husband and wife, the husband strikes the wife with a pestle or other dangerous weapon, and she presently dies. These and similar instances, are evidences of a malice presense on the part of the slayer; and he shall be held guilty of murder—In cases of self murder, there must be a voluntary and deliberate putting an end to one's existence; or doing some unlawful malicious act, the consequence of which is his own In a word, all homicide is presumed to be malicious, until the contrary is made to appear in
For this shews
evidence. There is a regular gradation of importance in the component parts of the universal system; and, therefore, there must be a scale marking the degrees of injury. We have examined the highest injury that can be committed or perpetrated upon the person of an individual—let us now turn our attention to such injuries against the person, as are of an inferior nature.
or corn in it. done with a malicious intent, otherwise it is only
immunities and valuable privileges. Among the ancients, if even an enemy reached the fire-place of the house, he was sure of protection. Thus we find Coriolanus at the fire-place of Tullus Aufidius, chief of the Volscian nation, discovering himself to Aufidius, his public and private enemy, and supplicating and receiving his protection against Rome from whence he was banished. And, on this subject of a dwelling, Cicero, the great Roman lawyer, orator and statesman, thus pathetically expresses himself: “What is more inviolable, what better defended by religion than the house of a citizen? Here are his altars, here his fire hearths are contained—this place of refuge is so sacred to all men, that to be dragged from thence is unlawful.” In like manner we find, that at Athens the habitation was particularly protected by the law: Burglary was there punished with death, altho’ theft was was not. And our law hath so special a regard to a man's dwelling house, that it terms it his castle, and will not suffer it to be violated with impunity. The law ranges the injuries against it under two heads—arson, and hamesecken or housebreaking: And, this last it divides into legal or proper burglary,which is nocturnal house breaking, and housebreaking by day.
Arson is an injury that tends by fire to annihi
late the habitation of another person, or other house, that being within the curtilage or homestall, may reasonably be esteemed a parcel of it, though not contiguous. So a barn in the field, with bay
But this injury by fire, must be
trespass. Burglary, is a breaking and entering in the night
time, the mansion house of another, with intent to commit some felony therein, whether the felonious intent be executed or not: And all such houses are the objects of burglary, and of housebreaking, as are described in the case of arson,
But, to violate this place of protection in the day, by robbing therein, and putting any dweller in fear, although there be no actual breach of the house; or by breaking and robbing in the house, a dweller being therein, and not put in fear; or by rob. bing and breaking the house, actually taking something, none being in the house; or by feloniously taking away something to the value of 35l. currency, or upwards, no person being in the house; or by breaking the house with intent to commit a felony, any person being in the house and put in fear, though nothing be actually taken—any such violation is called housebreaking—a crime not of so atrocious a nature as burglary. For, in the contemplation of our law, as well as of all others,
violency perpetrated in the night, are of a more
malignant tendency than similar ones by day: Be. cause, attacks in the night occasion a greater degree of terror; and because, they are in a season by nature appropriated to the necessary rest and re freshment of the human body, which is then, by sleep, disarmed of all attention to its defence.
With respect to injuries against a man's persomal property, they are to be considered under three heads. Larceny, malicious mischief, forge ry. And larceny, the first of these, is either sim ple or mixt.
Simple larceny, or common theft, is a felonious and fraudulent taking and carrying away the mere personal goods of another—here no violence or fear is implied. If goods so taken are above the value of seven shillings currency, the offence is termed grand larceny. But if they are not exceeding that value, the act is petit larceny. Mixt lar ceny has in it all the ingredients of simple larce my; but it is aggravated by a taking from the house or person; and this taking is yet aggravated if it is under the impression of violence or fear Such a taking in the house, with or without violence or fear, may or may not fall within the trimes of burglary ur housebreaking, according to the circumstances. And such a taking from the person, without, or with violence or fear, will be but simple larceny in the first case; in the other, it is a robbery, and the value is of no consideration.
Malicious mischief is a species of injury that
bears a wear reallion to the crime of arson. A
dwelling is the object of arson; but other property is the subject for malicious mischief to operate upon; and indeed this spirit of wanton cruelty has a wide field of action. This horrible spirit displays itself by burning or destroying the property of another, as a stack of rice, corn or other grain; or any tar kiln, barrels of pitch, turpentine, rosin or other growth, product or manufacture of this state: or killing or destroying any horses, sheep or other cattle. At length the crime of forgery, concludes the calendar of public offences against the property of an individual; I need only define the crime: It is a fraudulent making or alteration of a writing to the prejudice of another person. Having, in this manner marked, out to you the distinguishing features of the principal crimes and injuries against the person, habitation and property of an individual, I now desire your attention, and I shall not long detain it, while I delineate those against the state; objects which ought most carefully to be observed wherever they appear. I have purposely thus reserved this subject, as well because it is of the most important nature, and virtually includes the other, as that by being the last de. scribed, you may be the more likely to retain the the impression of it. Every outrage and violence against the person, i.abitation or property of an in. dividual, is a crime, a misdemeanor, or a contempt, and therefore an injury against the state, bound by original compact to protect the individual in his rights. For no inan, conceiving himself injured, has any authority, or shadow of it, to redress him. self; because the state has established courts which are vindices injuriarum. Hence, every criminal injury against the individual must ultimately wound the state; and be included in the offences against the body politic, which must be more important in their nature than those relating to the individual, because they are more extensive, and of a higher degree of criminality. It behoves you therefore to watch for the public safety; for this is to be attentive to your private security.
It is not by any means necessary that I trace these crimes, as they are branched by the law. The present public service requires your immediate particular attention to offences done against only four acts of assembly—the patrol and negro laws —the law against counterfeiting the certificates issued by the late houses of assembly, or the currency ssued by the congress of the continent or of this country—and, the law to prevent sedition, and to ourish insurgents and disturbers of the public
The two first laws are calculated to keep our domestics in a proper behavior. The two last were expressly formed as two pillars to support our new constitution; and therefore, these last are your most important objects.-I shall fully explain them.
The act against counterfeiting extends to all persons who counterfeit, raze or alter, or utter, or offer in payment, knowing the same to be counter. feited, razed or altered, any certificate or bill of credit, under the authority of the late commons house of assembly, or the congresses of this country, or of the continent.
The law to prevent sedition guards against those actions as, in such a crisis as this, might reasonably be expected to operate against our present honorable and happy establishment. And the variety and importance of those actions, make it necessary for me to particularize them to you.
This salutary act touches all persons taking up arms against the authority of the present government; or who, by violence, words deeds or writing, cause or attempt to cause, induce, or persuade any other person to do so. In like manner, all persons who give intelligence to, or hold correspondence with, or aid or abet any land or naval force sent by Great Britain, or any other force or body of men within this state with hostile intent against it. So those who compel, induce, persuade or attempt to do so, any white person, Indian, free negro, or slave, to join any force under authority derived from Great Britain. And so all persons who collect, or procure them to be assembled, with intent in a riotous and seditious manner, to disturb the public peace and tranquility; and by words, or other. wise, create and raise traitorous seditions or dis. contents, in the minds of the people against the public authority.
Thus having stated to you such criminal injuries against an individual, or the state, as may be most likely to come within your notice, it is a natural consequence, that I describe the person by law held capable of committing such injuries.
In the first place, the party must be of sound memory at the time of committing the offence, and it is the leading principle in every case. If the party is under seven years of age, no evidence can possibly be admitted to criminate; because, the law holds, that the party cannot discern between good and evil. But if the accused is above seven and under fourteen, he is liable to be crimi
nated, if at the time of his committing the injury,
to shew a consciousness of guilt, the rule being malitia supplet a tatem. And if the party is of the age of fourteen, which is the age of discretion, the law prima facie considers him capable of committing offences as a person of full age. Also a lunatic for crimes perpetrated in a lucid interval. Also a man for crimes done in a state of drunkeness voluntarily contracted; and so far is this artificial insanity from excusing, that it tends to aggravate the offence.
All those particulars relating to the person, habitation and property of an individual; those respecting the safety, peace and tranquility of the state; and these describing the perpetrator of criminal injuries, are so many proper heads for your diligent enquiry: And such offenders and offences being within your knowledge, you must make due presentment of them. You are to hear evidence only on the part of an information to you of an offence; for an indictment by you is only in the nature of a solemn and public accusation, which is afterwards to be tried and determined by others: You are only to examine, whether there be sufficient cause to call upon the party to answer. Twelve of you, at least must agree in opinion, that the accused ought to undergo a public trial—so twelve other jurors are to declare him innocent or guilty.—Happy institutions! whereby no man can be declared a criminal, but by the concurring voices of at least four and twenty men, collected in the vicinage by blind chance, upon their oaths to do justice; and against whom, even the party himself has no exception!]
Thus, gentlemen of the grand jury, with the
best intentions for the public service, however executed, having declared to you, that you are
not bound under, but freed from the dominion of the British crown, I thought myself necessarily obliged, and I have endeavored to demonstrate to
you, that the rise and fall of empires are natu
ral events—that the independence of America
was not, at the commencement of the late civil war, or even at the conclusion of the last year, the aim of the Americans—that their subjection to the British crown, being reieased by the action of Brtish oppression, the stroke of the British sword, and the tenor of a British act of parliament, their natural rise to Émpire was conducted by the hand of God!— that the same strong hand, by proceedings equally unexpected, wonderful and rapid as in our case, conducted the English revolution of 1688—that the revolutions in England and Scotland at that period, and in America now, giving a new epocha to
his understanding was so ripe as to occasion him
the history of the world, were founded in the same
immediate cause; a failure of protection—that those revolutions concurred in one grand evidence of the feelings of nature on such a subject—that every species of mal-administration in a king is to be traced to a failure of protection, which is the only instrument working his abdication—that the object for which we contend, is just in its nature and of inestimable value—that the American revolution may be supported with the fairest prospect of success by arms—and that it may be powerfully aided by a grand jury. Gentlemen, I do most cordially congratulate you, placed as you are in a station, honorable to yourselves, and beneficial to your country. Guardians of the innocent, you are appointed to send the robber, the murderer, the incendiary and the traitor to trial. Your diligence in enquiring for such of. fenders, is the source of your own honor, and a means of your country's safety, and although no such offenders be found, your laudable search will yet tend to curb a propensity to robbery, murder, sedition and treason. See, gentlemen, what great advantages may result from your vigilant and patriotic conduct! Your ears ought to be shut to the petitions of friendship, and to the calls of consanguinity—but they ought to be expanded to receive the complaints of your injured country, and the de. mands of impartial justice. Brutus inflicted upon his sons the ultimum supplicium for conspiring to re-establish the regal government in Rome. And, if a similar occasion should arise in America, which God forbid, I trust a Brutus will not be wanting! Let those, if there are any such, who treacherously or pusillanimously hanker after a return of regal government, remember such things and tremble.— Let us ever remember, rejoice and teach our children, that the American empire is composed of states that are, and of right ought to be, free and independent; “that they are absolved from all alle. giance to the British crown; and that all political connection between them and the state of Great Britain, 1s AND ought to ax Totallr Dissolved.
constituting the united colonies of North America independent states; an event, however once dreaded as repugnant to those hopes of peace and friend. ship with the British state, which was then ardently entertained, yet which every American must now most joyfully embrace, as the only happy means of salvation and security, and the surest prevention to the treacherous and cruel designs of a wicked and detestable enemy.
II. As the kind and beneficent hand of a wise and bounteous Providence has so ordered and dis. posed of human events that, from calamities which were dreaded as the most miserable and destructive to America, benefits, the most advantageous, honorable and desirable have arrisen to her, which now gives a very joyful prospect to liberty and happiness—we think our grateful sense of such peculiar care and protection cannot be manifested in a way more acceptable and proper than in a strict regard to the duties which mankind owe to their God.
III. We present the growing evil of many churches established by law falling to decay, and some remaining without ministers to perform divine ser. vice, in divers parishes in this district, by which means the spirit of religion will decline, and be. come prejudicial to the manners of the people.
IV. We present and recommend a proper militia law to be made, in such manner as to compel impartially and equally all degrees of persons liable to do the duty therein required, so as to enable the good people of this state (who are now become principally the guardians thereof) to repel any do. mestic or foreign enemy as far as possible.
V. We present and recommend, that care may always be had, that none but gentlemen of weight and influence, and good example, be prevailed on to qualify and act in the commission of peaco, by whose influence licentiousness, sedition and profligacy may be suppressed, and good order main. tained.
VI. We present and recommend, that some of. fice may be created in this district, whereby executions and sales by the sheriff may be recorded, so that, on the death or removal of the sheriff, recourse may be had to such records by those conrned.
VII. We present and recommend, that Jews and others may be restrained from allowing their negroes to sell goods in shops, as such a practice may inudce other negroes to stead and barter with them
ANOTHER–BY THE SAME. South Canolt NA. At a court of grxenal sessions of the prace, oyer AND TERMI writ, Assize AND GEN eit Ah gaol DELIVEmy, begun and holden at Charl ston, for the district of Charleston, the 21st O tuber, 1777, before the honorable William Hosny on Axton, esq. chief justice, and his associates, justices of the said court. onnenko, That the political part of his honor, the chief justice's charge to the grand jury, together with their presentments be forth with printed and published. By the court, JOHN COLCOCK, C. C. S.
The politicAL PART of The change.
Gentlemen of the grand jury—Being but just
of those points immediately relative to your duty
Do you seriously think of the great work in which you, in conjunction with the rest of America, are engaged? You ought to do so without ceasing, and te act with a corresponding vigor. For, beyond all comparison, the work is the most stupendous, august, and beneficial of any extant in history. It is to establish an asylum against despotism: of an entire world to form an empire, composed of states linked together by consanguinity, professing the same religion, using the same language and customs, and venerating the same principles of liberty. A compounded political cement, which, in the formation of the grand empires upon record, no political architects but ourselves ever possesseda cement prepared to our hand by the Great Constructor of the universe; and for the best of purposes.
Formed to enjoy, “among the powers of the “earth, the separate and equal station to which “the laws of nature and of nature's God entitle us,” by an unexpected and unprovoked declaration of the king and parliament of Britain, that the inha. bitants of America, having no property nor right, were by them to be bound in all cases whatsoever —by their sending a military force to compel us to submit to that declaration—by their actual seizure of our property--by their lighting conflagrations in our land---perpetrating rape and massacre upon our people, and finally releasing us from our allegiance, by announcing to us, on the twenty-first day of December, 1775, that we were by themselves placed out of their protection—America has been com. pelled to step into that station which, I trust, we are willing, and which, I am convinced, with the blessing of God, we are able to maintain...--Aly dear countrymen, turn your attention to the transactions of the last twelve months, and be convinced, that
returned from the house of God, we are, I trust, sanctified to enter upon the most important civil duties, and possessed of the favor of Heaven, to aid us in our endeavors faithfully to discharge our
our cause is the peculiar care of Heaven.
Human policy at best is but short sighted; nor is it to be wondered at, that the original formation
respective functions. At present, it is your part of the continental army was upon an erroneous attentively to listen to me—it is mine to discourse principle. The people of America are a people of