every principle of monour and virtue, and too often hath ended in self-murder. (17) To restrain this pernicious vice among the inferior sort of people, the statute 33 Hen. VIII, c. 9, was made; which prohibits to all but gentlemen the games of tennis, tables, cards, dice, bowls and other unlawful diversions there specified, (e) unless in the time of Christmas, under pecuniary pains and imprisonment. And the same law, and also the statute 30 Geo. II, c. 24, inflict pecuniary penalties, as well upon the master of any public house wherein servants are permitted to game, as upon the servants themselves, who are found to be gaming there. But this is not the principal ground of modern complaint; it is the gaming in high life that demands the attention of the magistrate; a passion to which every valuable consideration is made a sacrifice, and which we seem to have inherited from our ancestors the ancient Germans; whom Tacitus (f) describes to have been bewitched with a spirit of play to a most exorbitant degree." They addict themselves," says he, "to dice (which is wonderful) when sober, and as a serious employment: with such a mad desire of winning or losing, that when stript of every thing else, they will stake at last their liberty and their very selves. The loser goes into a voluntary slavery, and though younger and stronger than his antagonist, suffers himself to be bound and sold. And this perseverance in so bad a cause they call the point of honour: *ea est in re parva pervicacia, ipsi fidem vocant." One would almost be [*172 ] tempted to think Tacitus was describing a modern Englishman. When men are thus intoxicated with so frantic a spirit, laws will be of little avail; because the same false sense of honour that prompts a man to sacrifice himself, will deter him from appealing to the magistrate. Yet it is proper that laws should be, and be known publicly, that gentlemen may consider what penalties they wilfully incur, and what a confidence they repose in sharpers; who, if successful in play, are certain to be paid with honour, or, if unsuccessful, have it in their power to be still greater gainers by informing. For by statute 16 Car. II, c. 7, if any person by playing or betting shall lose more than 1007. at one time, he shall not be compellable to pay the same; and the winner shall forfeit treble the value, one moiety to the king, the other to the informer. The statute 9 Ann. c. 14, enacts, that all bonds and other securities, given for money won at play, or money lent at the time to play withal, shall be utterly void; that all mortgages and incumbrances of lands, made upon the same consideration, shall be and enure to the use of the heir of the mortgagor; that, if any person at any time or sitting lose 107. at play, he must sue the winner, and recover it back by action of debt at law; and in case the loser does not, any other person may sue the winner for treble the sum so lost; (18) and the plaintiff may by bill in equity examine the defendant himself upon oath; and that in any of these suits no privilege of parliament shall be allowed. The statute further enacts, that if any person by cheating at play shall win any money or valuable thing, or shall at any one time or sitting win more than 107., he may be indicted thereupon, and shall forfeit five times the value to any person who will sue for it; and (in case of cheating) shall be deemed infamous, and suffer such corporal punishment as in case of wilful perjury. By several statutes of the reign of King George (e) Logetting in the fields, slide thrift or shove groat, cloyish cayles, half-bowl and coyting. (f) De Mor. Germ. c. 24. (17) [At_common law, the playing at cards, dice and other games of chance, merely for the purposes of recreation, and without any view to inordinate gain, is regarded as innocent. Bac. Ab. Gaming, A.; Com. Dig. Justices of the peace, B. 42; and see the preamble to 16 Car. II, c. 7. But a common player at hazard, using false dice, is liable to be indicted at common law: 2 Rol. Ab. 78; Bac. Ab. Gaming, A.; and any person cheating by means of cards or dice might be fined or imprisoned in proportion to the nature of the offence. Bac. Ab. Gaming, A.; and see the 9 Ann. c. 15, s. 6.] (18) The penalties for winning or losing to a certain amount are repealed by 8 and 9 Vic. c. 109, which makes new provisions. See also 14 and 15 Vic. c. 100; 16 and 17 Vic. c. 119; 17 and 18 Vic. c. 38; and 22 and 23 Vic. c. 17. VOL. II.-51. 401 II, (g) all private lotteries by tickets, cards or dice (and particularly the games of faro, basset, ace of hearts, hazard, passage, rolly polly, and all other games with dice except backgammon) are prohibited under a penalty of 2007. for him [*173] that shall erect such lotteries, and 50l. a time for the players. Public *lotteries, unless by authority of parliament, and all manner of ingenious devices, under the denomination of sales or otherwise, which in the end are equivalent to lotteries, were before prohibited by a great variety of statutes (h) under heavy pecuniary penalties. But particular descriptions will ever be lame and deficient, unless all games of mere chance are at once prohibited: the inventions of sharpers being swifter than the punishment of the .law, which only hunts them from one device to another. The statute 13 Geo. II, c. 19, to prevent the multiplicity of horse races, another fund of gaming, directs that no plates or matches under 507. value shall be run, upon penalty of 2007. to be paid by the owner of each horse running, and 1007. by such as advertise the plate. By statute 18 Geo. II, c. 34, the statute 9 Ann. is farther enforced, and some deficiencies supplied; the forfeitures of that act may now be recovered in a court of equity; and, moreover, if any man be convicted upon information or indictment of winning or losing at play, or by betting at one time 10%., or 201 within twenty-four hours, he shall be fined five times the sum for the benefit of the poor of the parish. Thus careful has the legislature been to prevent this destructive vice; which may show that our laws against gaming are not su deficient, as ourselves and our magistrates in putting those laws in execution. (19) 9. Lastly, there is another offence, constituted by a variety of acts of parlia ment; which are so numerous and so confused, and the crime itself of so questionablea nature, that I shall not detain the reader with many observations thereupon. And yet it is an offence which the sportsmen of England seem to think of the highest importance; and a matter, perhaps the only one, of general and national concern: associations having been formed all over the kingdom to prevent its destructive progress. I mean the offence of destroying such beasts and fowls as are ranked under the denominations of game; which, we may remember, was formerly observed (i) (upon the old principles of the forest law), *to be a trespass and offence in all persons alike, who have not author[*174] ity from the crown to kill game (which is royal property), by the grant either of a free warren, or at least a manor of their own. But the laws, called the game laws, have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king's license, expressed by the grant of a franchise, are guilty of the first original offence, of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty not only of the (g) 12 Geo. II, c. 28. 13 Geo. II, c. 19. 18 Geo. II, c. 34. (h) 10 and 11 Wm. III, c. 17. 9 Ann. c. 6, § 56. 10 Aun. c. 26, § 109. 8 Geo. I, c. 2, if 36, 37. 9 Geo. I, c. 19, § 4. 5. 6 Geo. II. c. 35. §§ 29, 30. (i) See book II, page 417, &c. (19) The enactment of 13 Geo. II, c. 19, referred to in the text, was repealed by 3 and 4 Vic. c. 5, and the penalties under statute 9 Ann. were repealed by 8 and 9 Vic. c. 109, s. 15. Section 18 of the same statute made all wagers and wagering contracts null and void, and pro. hibited suit to recover the stakes. That wagers in general were legal at the common law, see Good v. Elliot, 3 T. R. 693; Bland v. Collett, 4 Camp). 37; Marryat v. Broderick, 2 M. and w 369. But if the subject-matter of the wager is such as to make it inconsistent with public policy, either party may demand his stakes and recover from the stakeholder if he refuse to pay back, even though the wager is determined (Cotton v. Thurland, 5 T. R. 405; Lacaussade v. White, 7 T. R. 535), unless the stakeholder has actually paid it over to the winner before notice not to do so. Howson v. Hancock, 8 T. R. 575; Perkins v. Eaton, 3 N. H. 152; Livingston v. Wootan, 1 N. and MoC. 178. In the United States wagers are generally made illegal by statute. original offence, but of the aggravations also, created by the statutes for preserving the game: which aggravations are so severely punished, and those punishments so implacably inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. The offence, thus aggravated, I have ranked under the present head, because the only rational footing upon which we can consider it as a crime, is that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings; which is an offence against the public police and economy of the common wealth. The statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked,(j) that in one statute only, 5 Ann. c. 14, there is false grammar in no fewer than six places, besides other mistakes; the occasion of which, or what denomination of persons were probably the penners of these statutes, I shall not at present inquire. It is in general sufficient to observe, that the qualifications for killing game, as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 1007. *per annum: there be[*175] ing fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire: 2. A leasehold for ninety-nine years of 1507. per annum: 3. Being the son and heir apparent of an esquire (a very loose and vague description), or person of superior degree: 4. Being the owner or keeper of a forest, park, chase, or warren. For unqualified persons transgressing these laws, by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game or have it in possession, at unseasonable times of the year, or unseasonable hours of the day or night, on Sundays or on Christmas day, there are various penalties assigned, corporal and pecuniary, by different statutes; (k) on any of which, but only on one at a time, the justice may convict in a summary way, or (in most of them) prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II, c. 12, no person, however qualified to kill, may make merchandise of his valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.(20) CHAPTER XIV. OF HOMICIDE. IN the ten preceding chapters we have considered, first, such crimes and misdemeanors as are more immediately injurious to God, and his holy religion; secondly, such as violate or transgress the law of nations; thirdly, such as more especially effect the king, the father and representative of his people; fourthly, such as more directly infringe the rights of the public or commonwealth, taken in its collective capacity; and are now, lastly, to take into consideration those which in a more peculiar manner affect and injure individuals or private subjects. Were these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely under the notion (20) The changes made in the game laws by which the property qualifications are dispensed with, and the buying and selling of game are legalized under certain restrictions, are elsewhere referred to. See statute 1 and 2 Wm. IV, c. 32, and 2 and 3 Vic. c. 35. And as to taking game by night, statute 9 Geo. IV, c. 69; 7 and 8 Vic. c. 29, and 24 and 25 Vic. c. 96, s. 17. In this connection, the offence of buying and selling offices may properly be mentioned. The statutes concerning it are 5 and 6 Edw. VI, c. 16, and 49 Geo. III, c. 106, which make it a misdemeanor. of, private wrongs; for which a satisfaction would be due only to the party injured; the manner of obtaining which was the subject of our inquiries in the preceding book. But the wrongs, which we are now to treat of, are of a much more extensive consequence: 1. Because it is impossible they can be committed without a violation of the laws of nature; of the moral as well as political rules of right: 2. Because they include in them almost always a breach of the public peace: 3. Because by their example and evil tendency they threaten and endanger the subversion of all civil society. Upon these accounts it is, [*177] *that, besides the private satisfaction due and given in many cases to the individual, by action for the private wrong, the government also calls upon the offender to submit to public punishment for the public crime. And the prosecution of these offences is always at the suit and in the name of the king, in whom, by the texture of our constitution, the jus gladii, or executory power of the law, entirely resides. Thus, too, in the old Gothic constitution, there was a three-fold punishment inflicted on all delinquents; first, for the private wrong to the party injured; secondly, for the offence against the king by disobedience to the laws; and, thirdly, for the crime against the public by their evil example. (a) Of which we may trace the groundwork, in what Tacitus tells us of his Germans; (b) that whenever offenders were fined, "pars mulctæ regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur." These crimes and misdemeanors against private subjects are principally of three kinds; against their persons, their habitations, and their property. Of crimes injurious to the persons of private subjects the most principal and important is the offence of taking away that life which is the immediate gift of the great Creator; and of which therefore no man can be entitled to deprive himself or another, but in some manner either expressly commanded in, or evidently deducible from those laws which the Creator has given us; the divine laws, I mean, of either nature or revelation. The subject therefore of the present chapter, will be the offence of homicide, or destroying the life of man, in its several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it. Now homicide, or the killing of any human creature, is of three kinds; justifiable, excusable, and felonious. The first has no share of guilt at all; the second [*178] very little; but the third is the highest crime against the law of nature that man is capable of committing. I. Justifiable homicide is of divers kinds. 1. Such as is owing to some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence in the party killing, and therefore without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put a malefactor to death, who hath forfeited his life by the laws and verdict of his country. This is an act of necessity, and even of civil duty; and therefore not only justifiable, but commendable, where the law requires it. But the law must require it, otherwise it is not justifiable: therefore, wantonly to kill the greatest of malefactors, a felon or a traitor, attainted or outlawed, deliberately, uncompelled, and extra-judicially, is murder.(c) For, as Bracton (d) very justly observes, "istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet juste occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam." And farther, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder.(e) And upon this account, Sir Matthew Hale himself, though he accepted the place of a judge of the common pleas under Cromwell's government (since it is necessary to decide the disputes of civil property in the worst of times), yet declined to sit on the crown side at the assizes, and try prisoners; having very strong objections to the legality of the usurper's com (c) 1 Hal. P. C. 497. (a) Stiernhook, l. 1. c. 5. (d) fol. 120. mission; (f) a distinction perhaps rather too refined; since the punishment of crimes is at least as necessary to society, as maintaining the boundaries of property. Also, such judgment, when legal, must be executed by the proper officer, or his appointed deputy; for no one else is required by law to do it, which requisition it is that justifies the homicide. If another person doth it of his own head, it is held to be murder: (g) even though it be the [*179] judge himself. (4) It must farther be executed servato juris ordine; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be banged, or vice versa, it is murder: (i) for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law: but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commission of homicide, and besides, this license might occasion a very gross abuse of his power. The king, indeed, may remit part of a sentence; as in the case of treason, all but the beheading, but this is no change, no introduction of a new punishment; and in the case of felony, where the judgment is to be hanged, the king (it hath been said) cannot legally order even a peer to be beheaded. (k) But this doctrine will be more fully considered in a subsequent chapter. Again, in some cases homicide is justifiable, rather by the permission, than by the absolute command, of the law, either for the advancement, of public justice, which without such indemnification would never be carried on with proper vigour; or, in such instances where it is committed for the prevention of some atrocious crime, which cannot otherwise be avoided. 2. Homicides committed for the advancement of public justice, are; 1. Where an officer, in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him. (7) 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted; and, in the endeavour to take him, kills him. (m) This is similar to the old Gothic constitutions, which (Stiernhook informs us) (n) "furem, si aliter capi non posset, occidere *permittunt." 3. In case of a riot, or rebellious assembly, the officers [*180] endeavouring to disperse the mob are justifiable in killing them, both at common law, (0) and by the riot act, 1 Geo. I, c. 5. 4. Where the prisoners in a gaol, or going to a gaol, assault the gaoler or officer, and he in his defence kills any of them, it is justifiable for the sake of preventing an escape. (p) 5. If trespassers in forests, parks, chases, or warrens, will not surrender themselves to the keepers, they may be slain; by virtue of the statute 21 Edw. I, st. 2, de malefactoribus in parcis, and 3 and 4 W. and M. c. 10. (1) But in all these cases, there must be an apparent necessity on the officer's side, viz.: that the party could not be arrested or apprehended, the riot could not be suppressed, the prisoners could not be kept in hold, the deer-stealers could not but escape, unless such homicide were committed: otherwise, without such absolute necessity, it is not justifiable. (2) 6. If the champions in a trial by battle killed either of them the other. (f) Burnet in his life. (1) These statutes are since repealed. (k) 3 Inst. 52, 212. (h) Dalt. Just. c. 150. (2) If a person commits felony, and flies, or resists those who attempt to apprehend him, or is indicted of felony, and flies, or is arrested by warrant or process of law, and escapes, or is being conveyed to prisou, and escapes; in any of these cases, if he cannot be taken alive, and is killed in the act of resistance, the homicide is justifiable. 1 Hale, P. C. 489; 1 East, P. C. 298. So, if an officer has a warrant against A, by name, for felony, or if A is indicted of felony, or if the hue and cry is levied against him, by name; in any of these cases, if A, though innocent, flies or resists, and is killed by the officer or any other person aiding him, during flight or resistance, the person so killing him is indemnified. Fost. 318; 1 East, P. C. 300. And the officer, it seems, would be equally indemnified, though he had no warrant, if he acted on a charge of felony, and on reasonable suspicion, even though it should appear in the result that no felony had been committed. Samuel v. Payne, Doug. 359; Guppy v. Brittlebank, 5 Price, 525.] |