Sivut kuvina

the Saxon language, is said to signify the scolding-stool, though now it is frequently corrupted into ducking-stool, because the residue of the judgment is, that, when she is so placed therein, she shall be plunged in the water for her punishment.(y)

6. Idleness in any person whatsoever is also a high offence against *169] the public economy. In China it is a maxim that if there be a man who does not work, or a woman that is idle, in the empire, somebody must suffer cold or hunger, the produce of the lands not being more than sufficient, with culture, to maintain the inhabitants; and, therefore, though the idle person may shift off the want from himself, yet it must in the end fall somewhere. The court also of Areopagus, at Athens, punished idleness, and exerted a right of examining every citizen in what manner he spent his time; the intention of which was,(z) that the Athenians, knowing they were to give an account of their occupations, should follow only such as were laudable, and that there might be no room left for such as lived by unlawful arts. The civil law expelled all sturdy vagrants from the city :(a) and, in our own law, all idle persons or vagabonds, whom our antient statutes describe to be "such as wake on the night and sleep on the day, and haunt customable taverns and ale-houses, and routs about, and no man wot from whence they came nor whither they go," or such as are more particularly described by statute 17 Geo. II. c. 5, and divided into three classes,-idle and disorderly persons, rogues and vagabonds, and incorrigible rogues: all these are offenders against the good order and blemishes in the government of any kingdom. They are therefore all punished by the statute last mentioned; that is to say, idle and disorderly persons with one month's imprisonment in the house of correction; rogues and vagabonds with whipping and imprisonment not exceeding six months; and incorrigible rogues with the like discipline and confinement not exceeding two years; the breach and escape from which confinement in one of an inferior class ranks him among incorrigible rogues, and in a rogue (before incorrigible) makes him a felon and liable to be transported for seven years. Persons harbouring vagrants are liable to a fine of forty shillings, and to pay all expenses brought upon the parish thereby; in the same *manner as, by our antient laws, whoever harboured any *170] stranger for more than two nights was answerable to the public for any offence that such his inmate might commit.(b)16

7. Under the head of public economy may also be properly ranked all sumptuary laws against luxury, and extravagant expenses in dress, diet, and the like; concerning the general utility of which to a state, there is much controversy among the political writers. Baron Montesquieu lays it down(c) that luxury is necessary in monarchies, as in France; but ruinous to democracies, as in Holland. With regard therefore to England, whose government is compounded of both species, it may still be a dubious question how far private luxury is a public evil, and, as such, cognizable by public laws. And, indeed, our legislators have several times changed their sentiments as to this point; for formerly there *were a multitude of penal laws existing to restrain excess in ap*171] parel;(d) chiefly made in the reigns of Edward the Third, Edward the Fourth, and Henry the Eighth, against piked shoes, short doublets, and long coats; all of which were repealed by statute 1 Jac. I. c. 25. But as to excess of diet there still remains one antient statute unrepealed, 10 Edw. III. st. 3, which ordains that no man shall be served at dinner or supper with more than two courses, except upon some great holidays, there specified, in which he may be served with three."

8. Next to that of luxury naturally follows the offence of gaming, which is generally introduced to supply or retrieve the expenses occasioned by the former; it being a kind of tacit confession that the company engaged therein

()3 Inst. 219.

() Valer. Maxim. l. 2, c. 6.

(a) Nov. 80, c. 5.

(b) LL. Edw. c. 27. Bracton, 1. 3, tr. 2, c. 10, § 2.
() Sp. L. b. vii. c. 2 and 4.
(d) 3 Inst. 199.

18 This act and all others relating to vagrants, &c. are now repealed, by the 5 Geo. IV. c. 83-CHITTY.

do, in general, exceed the bounds of their respective fortunes; and therefore they cast lots to determine upon whom the ruin shall at present fall, that the rest may be saved a little longer. But, taken in any light, it is an offence of the most alarming nature, tending by necessary consequence to promote public idleness, theft, and debauchery among those of a lower class; and among persons of a superior rank it hath frequently been attended with the sudden ruin and desolation of antient and opulent families, an abandoned prostitution of every principle of honour and virtue, and too often hath ended in self-murder." 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 33 Geo. II. c. 24, inflict pecuniary penalties, as well upon the master of any public house where 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 de- [*172 mands 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 antient 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 stripped 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 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 Anne, 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 encumbrances 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 loses 107. at play, he may 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; 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 [*173 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

Logetting in the fields, slide-thrift, or shove-groat, cloyish cayles, half-bowl, and coyting.

(f) De Mor. Germ. c. 24.

"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. Abr. 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 Roll. Abr. 78. Bac. Abr. Gaming, A.;) and any persons cheating by means of cards or dice might be fined or imprisoned in proportion to the nature of the offence. Bac. Abr. Gaming, A.; and see the 9 Anne, c. 15, s. 6.—CHITTY.


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 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 back-gammon) are prohibited, under a penalty of 2001. for him 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 2001. to be paid by the owner of each horse running, and 1007. by such as advertise the plate.19 By statute 18 Geo. II. c. 24, the statute 9 Anne is further 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 107 or 207. 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 so deficient, as ourselves and our magistrates in putting those laws in execution.


(a) 12 Geo. II. c. 28. 13 Geo. II. c. 19. 18 Geo. II. c. 34.
() 10 & 11 W. III. c. 17. 9 Anne, c. 6, 2 56. 10 Anne, c.

26, 109. 8 Geo. I. c. 2, 36, 37. 9 Geo. I. c. 19, 4, 5. 6 Geo. II. c. 35, 229, 30.

18 In the construction of this act it has been held that a wager on some matter arising from the game, and collateral to it, but not on the event itself, is not an offence within it. 1 Salk. 344. Hawk. b. i. c. 92, s. 47. 2 H. Bla. 43. In the construction of the words 'at any one time or sitting," it has been adjudged that where a sum above 107. had been won and paid after a continuance at play, except an interruption during dinnertime, it was to be considered as won at one and the same sitting. 2 Bla. R. 1226.CHITTY.

19 Newmarket and Black Hambleton are excepted, where a race may be run for any sum or stake less than fifty pounds. But though such horse-races are lawful, yet it has been determined that they are games within the statute of 9 Anne, c. 14, and that of consequence wagers above 101. upon a lawful horse-race are illegal. 2 Bla. Rep. 706. A foot-race and a race against time have also been held to be games within the statute of gaming. 2 Wils. 36. So a wager to travel a certain distance within a certain time, with a post-chaise and a pair of horses, has been considered of the same nature. 6 T. R. 499. A wager for less than 107. upon an illegal horse-race is also void and illegal. 4 T. R. 1. Though the owners of horses may run them for a stake of 50%. or more at a proper place for a horse-race, yet it has been held if they run them upon the highway the wager is illegal. 2 B. & P. 51.

Wagers in general, by the common law, were lawful contracts; and all wagers may still be recovered in a court of justice which are not made upon games, or which are not such as are likely to disturb the public peace, or to encourage immorality, or such as will probably affect the interests, characters, and feelings of persons not parties to the wager, or such as are contrary to sound policy or the general interests of the community. See 3 T. R. 693, where the legality of wagers is fully discussed.

Where a person had given 1007. upon condition of receiving 3001. if peace was not concluded with France within a certain time, and he afterwards brought his action to recover the 300Z., it was held the wager was void, as being inconsistent with general policy; but he was allowed to recover back the 100%. which he had paid, under a count for so much money had and received by the defendant to his use. 7 T. R. 505. So also a person was permitted to recover back his share of a wager against a stakeholder upon a boxing-match, (5 T. R. 405,) the court not considering the conduct of the plaintiff in these instances so criminal as to deprive him of the benefit of their assistance. B. & P. 467.-CHRISTIAN.

The statute 13 Geo. II. c. 19 is now repealed, by stat. 3 & 4 Vict. c. 5.-STEWART.

See 2

9. Lastly, there is another offence, constituted by a variety of acts of parlianent, which are so numerous and so confused, and the crime itself of so questionable a 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 denomination of game; which, we may remember, was formerly observed (i) (upon the old principles of the forest law) to be a tres pass and offence in all persons alike who have not authority 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 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 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 Anne, 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 statuts, 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 100l. per annum," there being 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 150l. 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 justices 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 this valuable privilege by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification."2

(See book ii. page 417, &c.

(5) Burn's Justice, Game, § 3.

(*) Burn's Justice, tit. Game.

The doctrine, so frequently repeated by the learned commentator, that no person had originally, or has now, a right to kill game upon his own estate without a license or grant from the king, is controverted in 2 book, p. 419, n.-CHRISTIAN.

"It must be a fee-simple estate of 1007. a year, or an estate for life of 150l. per annum. -CHITTY.

"All these statutes are repealed, by stat. 1 & 2 W. IV. c. 32, and the law in this respect VOL. II.-29




*176] *IN the ten preceding chapters we have considered, first, such crimes and misdemeanours 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 affect the king, the father and representative of his people; fourthly, such as more directly infringe the rights of the public or com monwealth, 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 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 threefold 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, whatever offenders were fined, "pars mulctæ regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur."

These crimes and misdemeanours 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: justi *178] fiable, excusable, and felonious. The first has no share of guilt at all; the second 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,

(a) Stiernhook, l. 1, c. 5.

(*) De Mor. Germ. c. 12.

almost entirely altered. The necessity of any qualification for killing game was abolished, and it is enacted that every certificated person may kill game, subject to the law of trespass; and the sale of game by licensed persons and under certain restrictions is Legalized. STEWART.

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