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that I particularly explain what the law considers of these the first in degree is maybam, which as malice prepense.—Malice prepense then, is an is the cutting out, with malice prepense, or dis inclination of the mind, not so properly bearing abling the tongue, putting out an eye, slitting the ill-will to the person killed, the commonly received nose, cutting off a nose or lip, or depriving anonotion, as containing any evil design, the dictate of ther of the use of such of his members as may rena wicked and malignant heart.-The discovery of der him the less able to defend himself, or annoy this secret inclination of the mind must arise, his adversary. The next is rape. Then the infabecause it cannot any otherwise, only from the mous crime against nature. These are felonies. external effects of it; and by such evidence, the But there are yet other injuries against the permalignity of the mind is held either express in son which, being of a less flagrant degree, are, by part or implied in law. Thus, malice prepense is the tenderness of the law, described under the held to be express in fact, when there is evidence gentler term of misdemeanors. Such are assaults, of a laying in wait; or of menacings antecedent, batteries, wounding, false imprisonment, and kidgrudges, or deliberate compasings to do some napping. Here, in a manner, terminates the scale bodily harm. Even upon a sudden provocation, of injuries against the person: We will now state the one beating or treating another in an excessive such as may be perpetrated against his mansion, and cruel manner, so that he dies, though he did or habitation. not intend his death, the slayer displays an express evi! 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: For this shews an enmity to all mankind. So if two or more come to do any felony, or any unlawful act, the probable consequence of 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 præcogitata, 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 per fended by religion than the house of a citizen? son assisting him, though not specially called. Or when without sufficient provocation, and no affront

By the universal consent of all ages, the dwelling immunities and valuable privileges. Among the house of man, was and is endowed with peculiar 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 supfrom whence he was banished. And, on this subplicating and receiving his protection against Rome ject of a dwelling, Cicero, the great Roman lawyer, orator and statesman, thus pathetically expresses himself: "What is more inviolable, what better de

Here are bis 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

by words or gestures only is a sufficient provocation, a man suddenly kills another. Or when, up. like manner we find, that at Athens the habitation on a chiding between husband and wife, the husband strikes the wife with a pestle or other dan was particularly protected by the law: Burglary gerous weapon, and she presently dies. These was there punished with death, altho' theft was and similar instances, are evidences of a malice was not. And our law bath so special a regard to 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 death. In a word, all homicide is presumed to be malicious, until the contrary is made to appear in

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.

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 beads-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 annihilate 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 hay or corn in it. But this injury by fire, must be done with a malicious intent, otherwise it is only trespass.

Burglary, is a breaking and entering in the night

time, the mansion house of another, with intent to dwelling is the object of arson; but other property commit some felony therein, whether the felonious is the subject for malicious mischief to operate intent be executed or not: And all such houses are upon; and indeed this spirit of wanton cruelty has the objects of burglary, and of housebreaking, as a wide field of action. This horrible spirit dis are described in the case of arson. plays 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; 1 need only define the crime: It is a fraudulent making or alteration of a writing to the prejudice of another person.

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 dwel ler being therein, and not put in fear; or by robbing and breaking the house, actually taking something, none being in the house; or by feloniously taking away something to the value of 351. 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: Because, attacks in the night occasion a greater de. gree 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 the impression of it. Every outrage and violence sleep, disarmed of all attention to its defence. against the person, habitation or property of an in. With respect to injuries against a man's perso-dividual, is a crime, a misdemeanor, or a contempt, nal property, they are to be considered under and therefore an injury against the state, bound three heade. Larceny, malicious mischief, forgeby original compact to protect the individual in his ry. And larceny, the first of these, is either sim rights. For no inan, conceiving himself injured, ple or mixt

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 the state; objects which ought most carefully to shall not long detain it, while I delineate those against 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

has any authority, or shadow of it, to redress himself; 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.

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 exceed ing that value, the act is petit larceny. Mixt lar ceny has in it all the ingredients of simple larce ny; 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. It is not by any means necessary that I trace Such a taking in the house, with or without vio- these crimes, as they are branched by the law. The lence or fear, may or may not fall within the present public service requires your immediate crimes of burglary or housebreaking, according to particular attention to offences done against only the circumstances. And such a taking from the four acts of assembly-the patrol and negro laws person, without, or with violence or fear, will be-the law against counterfeiting the certificates isbut simple larceny in the first case; in the other, it is a robbery, and the value is of no considera

tion.

sued 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 punish insurgents and disturbers of the public

Malicious mischief is a species of injury that bears a near realtion to the crime of arson. A peace. -12.

-

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.

to shew a consciousness of guilt, the rule being malitia supplet ætatem. 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 The law to prevent sedition guards against those state; and these describing the perpetrator of criactions as, in such a crisis as this, might reasona-minal injuries, are so many proper heads for your bly be expected to operate against our present hodiligent enquiry: And such offenders and offences norable and happy establishment. And the variety being within your knowledge, you must make and importance of those actions, make it necessary due presentment of them. You are to hear evifor me to particularize them to you.

dence 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!!

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 pubThus, gentlemen of the grand jury, with the lic peace and tranquility; and by words, or other-best intentions for the public service, however wise, create and raise traitorous seditions or dis- executed, having declared to you, that you are contents, in the minds of the people against the not bound under, but freed from the dominion of public authority. the British crown, I thought myself necessarily obliged, and I have endeavored to demonstrate to you, that the rise and fall of empires are natural 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 BriIn the first place, the party must be of soundtish crown, being released by the action of Brtish memory at the time of committing the offence, and oppression, the stroke of the British sword, and the it is the leading principle in every case. If the tenor of a British act of parliament, their natural party is under seven years of age, no evidence can rise to empire was conducted by THE BAND OF GOD!—— possibly be admitted to criminate; because, the that the same strong hand, by proceedings equally Jaw holds, that the party cannot discern between unexpected, wonderful and rapid as in our case, good and evil. But if the accused is above seven conducted the English revolution of 1688—that the and under fourteen, he is liable to be crimi-revolutions in England and Scotland at that penated, if at the time of his committing the injury,riod, 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

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.

immediate cause; a failure of protection-that those constituting the united colonies of North America revolutions concurred in one grand evidence of the independent states; an event, however once dreadfeelings of nature on such a subject that every ed as repugnant to those hopes of peace and friendspecies of mal-administration in a king is to be ship with the British state, which was then ardenttraced to a failure of protection, which is the only ly entertained, yet which every American must instrument working his abdication--that the object now most joyfully embrace, as the only happy for which we contend, is just in its nature and of in- means of salvation and security, and the surest preestimable value-that the American revolution may vention to the treacherous and cruel designs of a be supported with the fairest prospect of success wicked and detestable enemy. by arms-and that it may be powerfully aided by a grand jury.

II. As the kind and beneficent hand of a wise and bounteous Providence has so ordered' and dis.

Gentlemen, I do most cordially congratulate you, posed of human events that, from calamities which placed as you are in a station, honorable to your were dreaded as the most miserable and destrucselves, and beneficial to your country. Guardians tive to America, benefits, the most advantageous, of the innocent, you are appointed to send the rob-honorable and desirable have arrisen to her, which ber, the murderer, the incendiary and the traitor now gives a very joyful prospect to liberty and to trial. Your diligence in enquiring for such of happiness-we think our grateful sense of such fenders, is the source of your own honor, and a peculiar care and protection cannot be manifested means of your country's safety, and although no in a way more acceptable and proper than in a such offenders be found, your laudable search will strict regard to the duties which mankind owe to yet tend to curb a propensity to robbery, murder, their God. 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.means the spirit of religion will decline, and become prejudicial to the manners of the people. mands of impartial justice. Brutus inflicted upon his sons the ultimum supplicium for conspiring to IV. We present and recommend a proper militia re-establish the regal government in Rome. And, law to be made, in such manner as to compel imif a similar occasion should arise in America, which partially and equally all degrees of persons liable God forbid, I trust a Brutus will not be wanting to do the duty therein required, so as to enable Let those, if there are any such, who treacherously the good people of this state (who are now become or pusillanimously hanker after a return of regal go- principally the guardians thereof) to repel any do. vernment, remember such things and tremble.-mestic or foreign enemy as far as possible.

Let us ever remember, rejoice and teach our chil dren, 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, 18 AND OUGHT TO BE TOTALLY DISSOLVED.

THE PRESENTMENTS OF THE JURY.

SOUTH-CAROLINA.

At a court of GENERAL SESSIONS OF THE PEACE, OYER

AND TERMINER, ASSIZE AND GENERAL GAOL DE.

LIVERY, begun to be held at Charleston, for the district of Charleston, on Tuesday, October 15th, in the year of our Lord one thousand seven hundred and seventy-six.

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

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 peace, 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 con

cerned.

Presentments of the grand jury for the said district. VII. We present and recommend, that Jews and L. It is with most cordial satisfaction we embrace others may be restrained from allowing their nethis opportunity of offering our congratulations on groes to sell goods in shops, as such a practice may the late declaration of the continental congress, inudce other negroes to steal and barter with them

VIII. We present the ill practice of Jews open-of those points immediately relative to your duty ing their shops and selling of goods on Sunday, in this court, and of such things as may enable to the profanation of the Lord's Day. you, when you shall return into your vicinage, in a freedom of your country. The occasion of our more enlarged manner to support the laws and meeting demands the first-the present crisis of public affairs requires the last, and I flatter myself your time will neither be disagreeably nor unprofitably occupied. Let me therefore begin with laying before you some considerations aimed to support the freedom of your country; such are ever

IX. We present the barrack master Philip Will, for seizing of firewood on the wharves, under pretence of the public, when he applies the same to his own use, to the distressing of the inhabitants. By information of Mr. Patrick Hinds, one of the grand jurors.

X. We present the want of more constables in this district, we being informed that there are on-uppermost in my thoughts. ly four in this town.

XI. We return our thanks to bis honor, the chief justice, for his excellent charge delivered at the opening of the sessions, and desire that the charge and these presentments be forthwith printed and published.

Joseph Glover, foreman, [L. s.]
Benjamin Baker,

[L. 8.] [L. 8.] [L. S.]

Benjamin Dart,

John Fullerton,

Christopher Fitzismons,

[L. s.]

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John Miles,

[L. S.]

William Russel,

[L. S.]

Stephen Townsend,

[L. S.]

ANOTHER-BY THE SAME. SOUTH CAROLINA.

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 to 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.

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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 inhabitants of America, having no property nor right, were by them to be bound in all cases whatsoever RY, begun and holden at Charleston, for the dis--by their sending a military force to compel us trict of Charleston, the 21st October, 1777, before to submit to that declaration-by their actual the honorable WILLIAM HENRY DRAYTON, esq. seizure of our property---by their lighting conflagra, chief justice, and his associates, justices of the said court.

At a court of GENERAL SESSIONS OF THE FEACE, OYER
AND TERMINER, ASSIZE AND GENERAL GAOL DELIVE-

ORDERED, That the political part of his honor, the chief justice's charge to the grand jury, together with their presentments be forthwith printed and published.

By the court,

JOHN COLCOCK, C. C. S.

THE POLITICAL PART OF THE CHANGE.

tions 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 compelled 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..........My dear countrymen, turn your attention to the transactions of the last twelve months, and be convinced, that our cause is the peculiar care of Heaven.

Gentlemen of the grand jury.—Being but just 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 Human policy at best is but short sighted; nor aid us in our endeavors faithfully to discharge our 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

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