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that I particularly explain wbat 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 bim the less able to defend bimself, or annoy this secret inclination of the mind must arise, his adversary. The next is rape. Then the infa. because 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.-Tbus, 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 kid. grudges, 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
By the universal consent of all ages, the dwelling evil design, the genuine sense of malice. This is
house of man, was and is endowed with peculiar evidence of a bad beart; and the act is equivalent
immunities and valuable privileges. Among the to a deliberate act of slaughter. So any willful action, likely in its nature to kill, without its being the house, he was sure of protection. Thus we
ancients, if even an enemy reached the fire place of aimed at any person in particular: For this shews
find Coriolanus at the fire-place of Tullus Ausdius, an enmity to all mankind. So if two or more come
chief of the Volscian nation, discovering himself to do any felony, or any unlawful act, the probable
to Aufidius, his public and private enemy, and supconsequence of which might be bloodshed, and one of them kills a man, it is murder in them all, be. plicating and receiving his protection against Rome
from whence he was banished. And, on this subcause of the unlawful act, the malitia præcogitata,
ject of a dwelling, Cicero, the great Roman lawyer, or evil intended.—But malice prepense is held to
orator and statesman, thus pathetically expresses be implied in law, when one kills an officer of
himself: “What is more inviolable, what better de. justice in the execution of his office, or any per.
fended by religion than the bouse of a citizen? son assisting him, though not specially called. Or
Here are bis altars, here bis fire hearths are conwhen without sufficient provocation, and no affront by words or gestures only is a sufficient provoca. that to be dragged from thence is unlawful.” In
tained--this place of refuge is so sacred to all men, lion, a man suddenly kills another. Or when, up.
like manner we find, that at Athens the babitation on a chiding between husband and wife, the hus. band strikes the wife with a pestle or other dan. was particularly protected by the law: Burglary
was there punished with death, altho' theft was gerous weapon, and she presently dies. These 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 a man's dwelling bouse, that it terms it his castle,
and will not suffer it to be violated with impunity. held guilty of murder.--- In cases of self.murder, there must be a voluntary and deliberate putting
The law ranges the injuries against it under two
beads-arson, and hamesecken or housebreaking: an end to one's existence; or doing some unlawful
And, this last it divides into legal or proper bur. malicious act, the consequence of which is his own death. In a word, all homicide is presumed to be glary, which is nocturnal house breaking, and housemalicious, until the contrary is made to appear in breaking by day. evidence.
Arson is an injury that tends by fire to annibiThere is a regular gradation of importance in late the habitation of another person, or other the component parts of the universal system; and, house, that being within the curtilage or homestall, therefore, there must be a scale marking the de. may reasonably be esteemed a parcel of it, though grees of injury. We have examined the highest not contiguous. So a barn in the field, with hay injury that can be committed or perpetrated upon or corn in it. But this injury by fire, must be the person of an individual—let us now turn our done with a malicious intent, otherwise it is only attention to such injuries against the person, as trespass. are of an inferior nature.
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 inischief 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; But, to violate this place of protection in the day,
or any tar kiln, barrels of piici, turpentine, rosin by robbing therein, and putting any dweller in fear,
or other growth, product or manufacture of this although there be no actual breach of the house:
state: or killing or destroying any horses, sheep or by breaking and robbing in the house, a dwel.
or other castle. ler being therein, and not put in fear; or by rob.
At length the crime of forgery, concludes the bing and breaking the house, actually taking some.
calendar of public offences against the property of thing, none being in the house, or by feloniously
an individual; I need only define the crime: It is taking away something to the value of 351. curren
a fraudulent making or alteration of a writing to cy, or upwards, no person being in the house; or
the prejudice of another person. by breaking the house with intent to commit a
Having, in this manner marked, out to you the felony, any person being in the house and put in
distinguishing features of the principal crimes and fear, though nothing be actually taken--any such
injuries against the person, habitation and property violation is called bousebreaking—a crime rot of
of an individual, I now desire your attention, and I 50 atrocious a nature as burglary. For, in the
shall not long detain it, while I delineate those against contemplation of our law, as well as of all others,
the state; objects which ought most carefully to riolency perpetrated in the night, are of a more
be observed wherever they appear. I have pur. malignant tendency than similar ones by day: Be. cause, attacks in the night occasion a greater de. posely thus reserved this subject, as well because
it is of the most imporiant nature, and virtually gree of terror; and because, they are in a season by
inclodes the other, as that by being the last de. nature appropriaied to the necessary rest and re frestment of the human body, which is then, by the impression of it. Every outrage and violence
scribed, you may be the more likely to retain the sleep, disarmed of all attention to its defence.
against the person, Liabitation 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, forgt iny original compact to protect the individual in his ry. And larceny, the first of these, is ei her sim rights. For no inan, conceiving himself injured, ple or nixt.
has any authority, or shadow of it, to redress him. Simple larceny, or common theft, is a felonious self; hecause the state has established courts which and fraudulent taking and carrying away the mere are vindices injuriarum. Hence, every criminal inpersonal goods of another-bere no violence or jury against the individual must ultimately wound fear is implied. If goods so taken are above the he state; and be included in the offences against value of seven shillings currency, the offence is he body politic, which must be more important in termed grand larceny: But if they are not exceed their nature than those relating to the individual, ing that value, the act is petit larceny. Mixt lar because they are more extensive, and of a higher ceny has in it all the ingredients of simple larce degree of criminality. It behoves you therefore ny; but it is aggravated by a taking from the house to watch for the public safety; for this is to be at. or person; and this taking is yet aggravated iftentive to your private security. 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- bese 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 ur 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 is. but simple larceny in the first case; in the other, sued by the late bouses of assembly, or the currency it is a robbery, and the value is of no considera ssued by the congress of the continent or of this tion.
country--and, the law to prevent sedition, and to Malicious mischief is a species of injury that manish insurgents and disturbers of the public bears a near realtion to the crime of araon. Apeace.
The two first laws are calculated to keep our to shew a consciousness of guilt, the rule being domestics in a proper behavior. The two last were malitia supplet ætatem. And if the party is of the expressly formed as two pillars to support our age of fourteen, which is the age of discretion, the new constitution; and therefore, these last are your law primu facie considers him capable of commitmost important objects. I shall fully explain them. ting offences as a person of full age. Also a luna
tic for crimes perpetrated in a lucid interval. Also The act against counterfeiting extends to all
a man for crimes do:le in a state of drunkeness vo. persons who counterfeit, raze or alter, or utter, or
luntarily contracted; and so far is this artificial inoffer in payment, knowing the same to be counter.
sanity from excusing, that it tends to aggravate feited, razed or altered, any certificate or bill of
the offence. credit, under the authority of the late commons house of assembly, or the congresses of this coun
All those particulars relating to the person, hatry, or of the continent.
bitation and property of an individual; those re
specting the safety, peace and tranquility of the The law to prevent sedition guards against those
state; and these describing the perpetrator of cri. actions 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 ho diligent 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 This salutary act touches all persons taking up an offence; for an indictment by you is only in the arms against the authority of the present govern nature of a solemn and public accusation, which is ment; or who, by violence, words deeds or writing, afterwards to be tried and determined by others: cause or attempt to cause, induce, or persuade any You are only to examine, whether there be suffiother person to do so. In like manner, all persons cient cause to call upon the party 10 answer. who give intelligence to, or hold correspondence Twelve of you, at least must agree in opinion, that with, or aid or abet any land or naval force sent by the accused ought to undergo a public trial--so Great Britain, or any other force or body of men twelve other jurors are to declare bim innocent within this state with hostile intent against it. So or guilty.- Happy institutions! whereby no man those who compel, induce, persuade or attempt to can be declared a criminal, but by the concurring do so, any white person, Indian, free negro, or slave, voices of at least four and twenty men, collected to join any force under authority derived from in the vicinage by blind chance, upon their oaths Great Britain. And so all persons who collect, or to do justice; and against whom, even the party procure them to be assembled, with intent in a bimself has no exception!! riotous and seditious manner, to disturb the pub
Thus, 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 Thus having stated to you such criminal injuries obliged, and I have endeavored to demonstrate to against an individual, or the state, as may be most you, that the rise and fall of npires are natulikely to come withio your notice, it is a natural ral events—that the independence of America consequence, that I describe the person by law was not, at the commencement of the late civil war, beld capable of committing such injuries.
or even at the conclusion of the last year, the aim
of the Americano-that their subjection to the Bri. In the first place, the party must be of sound tish crown, being reieased by the action of Brtisk memory at the time of committing the offence, and oppression, the stroke of the British szord, and the it is the leading principle in every case. If the tenor of a British act of parliameni, their natural party is under seven years of age, no evidence can rise to ėmpire was conducted by THE BAND of God!-possibly be admitted to criminate; because, the that the same strong hand, by proceedi ge 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 conducied the English revolution of 1688—that the and under fourteen, he is liable to be crimi. revolutions in England and Scotland at that peo pated, if at the time of his committing the injury, riod, and in America now, giving a new epocha to bis understanding was so ripe as 10 occasion him the history of the world, were founded in the same
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 friend. species of mal-administratiop in a king is to be ship with the British state, which was then ardent. traced 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
II. As the kind and beneficent hand of a wise a grand jury.
and bounteous Providence has so ordered' and dis. Genticmen, 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 10 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 pa
III. We present the growing evil of many church. triotic conduci! Your ears ought to be shul to the es established by law falling to decay, and some petitions of friendship, and to the calls of consan. remaining without ministers to perform divine ser. guinity—but they ought to be expanded to receive vice, in divers parishes in this district, by which the complaints of your injured country, and the de. means the spirit of religion will decline, and bemands of impartial justice. Brutus inflicted upon
come prejudicial to the manners of the people. 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. verriment, 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
V. We present and recommend, that care may states that are, and of right ought to be, free and always be bad, that none but gentlemen of weight independent; “hat they are absolved from all alle. and influence, and good example, be prevailed on giance to the British crown; and that all political to qualify and act in the commission of peace, by
whose in Huence licentiousness, sedition and proconnection between them and the state of Great Britain, 18 AND OUGAT TO BE TOTALLY DISSOLVED.
Aigacy may be suppressed, and good order main.
tained. THE PRESENTMENTS OF THE JURY.
VI. We present and recommend, that some of. South.CAROLINA.
fice may be created in this district, whereby exeAt a court of GENERAL SESSIONS OF THE PEACE, OYER
cutions and sales by the sheriff may be recorded, ASD TERMIXER, ASSIZE AND GEVERAL GAOL LIVERT, begun to be held at Charleston, for the dis so that, on the death or removal of the sheriff, re. trict of Charleston, on Tuesday, October 15th, in course may be had to such records by those conthe year of our Lord one thousand seven hundred and seventy-sir.
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 embrice others may be restrained from allowing their ne. this opportunity of offering our congraiulations 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 IX. We present the barrack master Philip Will, freedom of your country. The occasion of our
more enlarged manner to support the laws and for seizing of firewood on the wharves, under pre- meeting demands the first-the present crisis of tence of the public, when be applies the same to
public affairs requires the last, and I Aatter myself his own use, to the distressing of the inhabitants.
your time will neither be disagreeably nor unBy information of Mr. Patrick Hinds, one of the
profitably occupied. Let me therefore begin with grand jurors.
laying before you some considerations aimed to X. We present the want of more constables in support the freedom of your country; such are ever this district, ire being intormed that tbere are on- uppermost in my thoughts. Jy four in this towa.
Do you seriously think of the great work in
which you, in conjunction with the rest of America, XI. We return our thanks to bis honor, the chief justice, for his excellent charge delivered at the
are engaged? You ought to do so without ceasing,
and to act with a corresponding vigor, For, beyond opening of the sessions, and desire that the charge and these presentments be forthwith printed and
all comparison, the work is the most stupendous, publisbed.
augusi, and beneficial of any extant in history. It Joseph Glover, foreman, (1. s.)
is to establish an asylum against despotism: of ați
entire world to form an empire, composed of states Benjumin Baker, [L. S.)
linked together by consanguinity, professing the Benjamin Dart, (L. S.)
game religion, using the same language and cusJohn Fullerton, [L. S.]
toms, and venerating the same principles of liberty. Christopher Fitzismons, (L. 6.)
A compounded political cement, which, in the и'illiam Hmpton,
formation of the grand empires upon record, no William Hale,
political architects but ourselves ever possessed Patrick Hirds,
a cement prepared to our hand by the Great ConCharles Johnston, (L. s.]
structor of the universe; and for the best of pur. Andrew Lord,
poses: John Miles,
Formed to enjoy, "among the powers of the William Russel, (L. S.]
" earth, the separate and equal station to which Stephen Townsend,
" the laws of nature and of nature's God entitle us,"
by an unexpected and unprovoked declaration of ANOTHER-BY THE SAME.
the king and parliament of Britain, that the inha. South CaroliNA.
bitants of America, having no property nor right, At a court of GENERAL SESSIONS OF THE PEACE, OIER were by them to be bound in all cases whatsoever
AND TERMISER, 49$IZE AND GENERAL GAOL DELIVERY, hezun and holden at Charl?ston, for the dis-i-by their sending a military force to compel us trict of Charleston, the 21st O tuber, 1777, before to submit to that declaration-by their actual the honorable William Hanur DRATTON, ESQ. seizure of our propertyq-by their lighting conflagra, chief justice, and his associates, justices of the 9. id court.
tions in our land...perpetrating rape and massacre ORDENED, That the political part of his honor, the upon our people, and finally releasing us from our
chief justice's charge to the grand jury, together allegiance, by announcing to us, on the twenty-first with their presentments be furth with printed and day of December, 1775, that we were by themselves published.
placed out of their protection-America has been com. By the court,
pelled to step into that station which, I trust, we JOHN COLCOCK, C. C. S.
are willing, and which, I am convinced, with the TNE POLITICAL PART OF THE CHARGE, blessing of God, we are able to maintain.... My dear Gentlemen of the grand jury.—Being but just countrymen, turn your attention to the transactions returned from the house of God, we are, I trust, of the last twelve months, and be convinced, that sanctified to enter upon the most important civil our cause is the peculiar care of Heaven. duties, and possessed of the favor of Heaven, to Human policy at best is but short siglated; nor aid us in our endeavors faithfully ta 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 discoursel principle. Tle people of America are a people of