Sivut kuvina

original offence, but of the aggravations also, created by the statutes for preserv ing 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 commonwealth.

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 1001. *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 150%. 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)



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

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(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 elsewhers 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. Th statutes concerning it are 5 and 6 Edw. VI, c. 16, and 49 Geo. III, c. 106, which make it a mis demeanor.

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. 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

(a) Stiernhook, l. 1. c. 5.
(b) de mor. Germ. c. 12.
(e) 1 Hawk. P. C. 70. 1 Hal. P. C. 497.

(c) 1 Hal. P. C. 497.

(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. () 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 endeavouring to disperse the mob are justifiable in killing them, both at [*180] common law, (o) 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.

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(1) These statutes are since repealed.

(k) 3 Inst. 52, 212.
(m) 1 Hal. P. C. 494.
(p) 1 Hal. P. C. 496.

(h) Dalt. Just. c. 150.
(n) de jure Goth. l 3, c. 5.

(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 prison, 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. 30; Guppy v. Brittlebank, 5 Price, 525.]

such Lomicide was justifiable, and was imputed to the just judgment of God, who was thereby presumed to have decided in favour of the truth. (q) (3)

In the next place, such homicide as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; (r) and also by the law of England, as it stood so early as the time of Bracton, (s) and as it is since declared in statute 24 Hen. VIII, c. 5. (4) If any person attempts a redbery or murder of another, or attempts to break open a house in the night-time (which extends also to an attempt to burn it), (t) and shall be killed in such attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets; or to the breaking open of any house in the day-time, unless it carries with it an attempt of robbery also. So the Jewish law, which punished no theft with death, makes homicide only justifiable in case of nocturnal house-breaking; if a thief be found. breaking up, and he be "smitten that he *die, there shall no blood be shed [*181] for him: but if the sun be risen upon him, there shall blood be shed for him; for he should make full restitution." (u) At Athens, if any theft was committed by night, it was lawful to kill the criminal, if taken in the fact: (w) and by the Roman law of the twelve tables, a thief might be slain by night with impunity: or even by day, if he armed himself with any dangerous weapon: () which amounts very nearly to the same as is permitted by our own


The Roman law also justifies homicide, when committed in defence of the chastity either of one's self or relations: () and so also, according to Selden, (2) stood the law in the Jewish republic. The English law likewise justifies a woman killing one who attempts to ravish her: (a) and so, too, the husband or father may justify killing a man who attempts a rape upon his wife or daughter: but not if he takes them in adultery by consent, for the one is forcible and felenious, but not the other. (b) And I make no doubt but the forcibly attempting a crime of a still more detestabie nature may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own, and all other laws, seems to be this: that where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does: who holds, (c) "that all manner of force without right upon a man's person, puts him in a state of war with the aggressor; and, of consequence, that being in such a state of war, he may lawfully kill him that puts him under this unnatural restraint." However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of every other *well-regulated community, is too tender of the public [*182] peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.

In these instances of justifiable homicide, it may be observed, that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error, or omission; so trivial, however, that the law excuses it from the guilt of felony, though, in strictness, it judges it deserving of some little degree of punishment.

(2) 1 Hawk. 1 C. 71.

(u) Exod. xxii. 2.

(r) Puff. L. of N. l. 2, c. 5.
(w) Potter, Antiq. b. 1, c. 25.

(y) Divus Hadrianus rescripsit eum qui stuprum sibi vel
(z) De legib. Hebræor. l. 4, c. 3.
(a) Bac. Elem. 34.
(c) Ess. on Gov. p. 2, c. 5.

(s) fol. 155. (t) 1 Hal. P. C. 488. (x) Cic. pro Milone. 3. Ff. 9, 2, 4. suis inferenlem occidit dimittendum." (Ff. 48. 8. 1.) 1 Hawk. P. C. 71. (b) 1 Hal. P. Č. 485, 486.

(3) [The trial by battle is abolished by 59 Geo. III, c. 46; see further upon that subject, post, 346.]

(4) [Repealed by 9 Geo. IV, c. 31, section 10 of which enacts, that no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony.]

II. Excusable homicide is of two sorts; either per infortunium, by misadventure; or se defendendo, upon a principle of self preservation. We will first see wherein these two species of homicide are distinct, and then wherein they agree.

1. Homicide per infortunium or misadventure is where a man, doing a lawful act, without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off, and kills a standerby; or where a person, qualified to keep a gun, is shooting at a mark, and undesignedly kills a man :(7) for the act is lawful, and the effect is merely accidental.(5) So where a parent is moderately correcting his child, a master his apprentice or scholar, or an officer punishing a criminal, and happens to occasion his death, it is only misadventure; for the act of correction is lawful: but if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensues, it is manslaughter at least, and in some cases (according to the circumstances) murder; (e) for the act of immoderate correction is unlawful. Thus, by an edict of the Emperor Constan[*183] tine, (f) when the rigor of the Roman law with regard to slaves began to relax and soften, a master was allowed to chastise his slave with rods and imprisonment, and, if death accidentally ensued, he was guilty of no crime: but if he struck him with a club or a stone, and thereby occasioned his death h; or if, in any other, yet grosser manner, "immoderate suo jure utatur, tunc reus homicidii sit."

But to proceed. A tilt or tournament, the martial diversion of our ancestors, was, however, an unlawful act: and so are boxing and sword-playing, the succeeding amusement of their posterity: and, therefore, if a knight in the former case, or a gladiator in the latter, be killed, such killing is felony or manslaughter. But if the king command or permit such diversion, it is said to be only misadventure; for then the act is lawful.(g) In the like manner, as by the laws. both of Athens and Rome, he who killed another in the pancratium, or public games authorized or permitted by the state, was not held to be guilty of homicide.(h) Likewise, to whip another's horse, whereby he runs over a child and kills him, is held to be accidental in the rider, for he had done nothing unlawful: but manslaughter in the person who whipped him, for the act was a trespass, and at best a piece of idleness, of inevitably dangerous consequences.(i)(6)

(d) 1 Hawk, P. C. 73, 74.

(e) 1 Hal. P. C. 473. 474.

(g) 1 Hal.P. C. 473. 1 Hawk. P. C. 74. (h) Plato, de LL. lib. 7.

(f) Cod. l. 9. t. 14. Ff. 9. 2. 7. (i) 1 Hawk. P. C. 73.

(5) [If a person driving a carriage happen to kill another, if he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder: if he might have seen the danger, but did not look before him, it will be manslaughter; but if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death, and excusable homicide. 1 East, P. C. 263. Where on a false alarm of thieves, the master of the house killed one of the family by mistake, who had concealed himself in a closet, this was holden homicide by misfortune. Cro. Car. 538. Where an unqualified person by accident shoots another in sporting, it is no greater offence than in a qualified person. 1 East, P. C. 260.]

Homicide by practical joke is manslaughter. As, where a fire was kindled around a drunken man only to frighten him, but into which he rolled and was killed. Errington's Case, 2 Lewin C. C. 217. And see Fenton's Case, 1 id. 179; Martin's Case, 3 C. and P. 211.

(6) [Whenever death is the consequence of idle, dangerous and unlawful sports, or of heedless, wanton and indiscreet acts, without a felonious intent, the party causing the death is guilty of manslaughter. As, if a man rides an unruly horse amongst a crowd of people; 1 East, P. C. 231; or throws a stone, or shoots an arrow, over a wall, into a frequented public street; 1 Hale, P.C. 475; or discharges his pistols in a public street upon alighting from his carriage: 1 Stra. 481; or throws a stone at a horse, which strikes a man: 1 Hale, P. C. 39; in any of these cases, though the party may be perfectly innocent of any mischievous intent, still, if death ensues, he is guilty of manslaughter. So, if the owner suffers to be at large any animal which he knows to be vicious and mischievous, and it kills a man, it has been thought by some that he may be indicted for manslaughter: but it is well agreed that he is guilty of a high misdemeanor: 2 Haw. P. C. c. 13, §8; and. in a very recent case of that kind, Best, C. J., laid it down as law. "that, if a person thinks proper to keep an animal of this description (a ball), knowing its vicious nature, and another person is killed by it, it will be manslaughter in

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