Sivut kuvina


statutes (g) 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 501. value shall be run, upon penalty of 200l. to be paid by the owner of each horse running, and 1001. by such as advertise the plate (23). By statute 18 Geo. II. c. 24. 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 imformation or indictment of winning or losing at play, or by betting at one time 107. 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 shew that our laws against gaming are not so deficient, as ourselves and our magistrates in putting those laws in execution (24).

9. Lastly, there is another offence, constituted by a variety of acts of parliament; 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 kiugdom to prevent its destructive progress. I mean the offence of destroying such beast, and fowls as are ranked under the denomination of game; which, we may remember, was formerly observed (h) (upon the old principles of the forest law), *to be a [*174] trespass 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

(g) 10 & 11 W. III. c. 17. 9 Ann. c. 6, § 56. 10 Ann. c. 26, 109. 8 Geo. I. c. 2, ◊ 36, 37. 9 Geo.

(23) 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 Ann. c. 14, and that of consequence wagers above 101. upon a lawful horserace, are illegal. 2 Bl. 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 101. 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 501. 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. and 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, VOL.II.


I. c. 19, 4, 5. 6 Geo. II. c. 35, ◊ 29, 30.
(h) See book II. page 417, &c.

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 3001., it was held, the wager was void, as being inconsistent with general policy, but he was allowed to recover back the 1007. 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. See 2 B. and P. 467.

(24) See 1 R. S. 662, 672, prohibiting gam ing and racing.

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 licence expressed by the grant of a franchise, are guilty of the first original offence, of encroaching on the royal prerogative (25). 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 oeconomy of the commonwealth.

The statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked (i), 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 [*175] estate of 100l. *per annum (26): 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, chace, 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 (27), (28).*

(i) Burn's Justice, Game, 3.

(25) 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 licence, or grant from the king, is controverted in 2 book, p. 419. n. 9.

(26) It must be a fee-simple estate of 100l. a year, or an estate for life of 150l. per an


(27) The present act in England is 9 Geo.

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

IV. c. 69. In New-York the laws relative to game are only intended to prevent the destruction of them at improper seasons of the year. See 1 R. S. 701.

(28) The ancient statutes of 12 R. II. c. 2, "that none shall obtain offices by suit, or for reward, but upon desert," which Lord Coke says is worthy to be written in letters of gold, but more worthy to be put in due execution, Co. Litt. 234, and that of 5 and 6 E. VI. c. 16,

(4) See Hov. n. (4) at the end of the Vol. B. IV.



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 affect the king, the father and representative of his people; fourthly, such as more directly infringet he 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 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, *that, be- [*177] sides 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 mulctae regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur "

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

"against buying and selling of offices," imposed only civil restrictions upon this offence, and civil disabilities upon offenders. But by the 49 Geo. III. c. 126, reciting the 5 and 6 E. VI. c. 16, and extending its provisions to Scotland and Ireland, and to all offices in the gift of the crown, &c.; persons buying or selling, or receiving or paying money or reward for any such office; and persons receiving or paying money for soliciting or obtaining any such of fice, or any negociation or pretended negocia tion relating thereto; and persons opening or advertising houses for transacting business relating to the sale of any such office; shall be respectively deemed and adjudged guilty

(b) de mor. Germ. c. 12.

of a misdemeanor; and offences against this Act, committed abroad, shall be tried in the court of King's Bench at Westminster, under the 42 Geo. III. c. 85. Commissions in the East India Company's service are expressly mentioned by the statute, and several instances have occurred, one very recently, of persons convicted and punished for the sale and negociation of such offices.

In New-York, the buying or selling of an office is a misdemeanor, punishable by imprisonment for a year and fine not exceeding 250 dollars, and by forfeiture of, and disqualification for, such office.

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 [*178] 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, 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 had 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 extrajudicially, is murder (c). For, as Bracton (d) very justly observes, " istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet justè 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 commission (ƒ); 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, [*179] 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 judge himself (h). 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 hanged, 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 oc

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

(d) fol. 120.

(e) 1 Hawk. P. C. 70. 1 Hal. P. C. 497. (f) Burnet in his life.

(g) 1 Hal. P. C. 501. 1 Hawk. P. C. 70.

(A) Dalt. Just. c. 150.

(i) Finch, L. 31. 3 Inst. 52. 1 Hal. P. C. 501.

casion 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. Homicide, 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 (). 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 [*180] rebellious assembly, the officers endeavouring to disperse the mob are justifiable in killing them, both at 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 & 4 W. & 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, such homicide 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), (4).

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

(k) 3 Inst. 52. 212.

(1) 1 Hal. P. C. 494. 1 Hawk. P. C. 71. (m) 1 Ial. P. C. 494.

(n) de jure. Goth. 1. 3, c. 5.

(1) 21 Edw. I. st. 2, is repealed by 7 and 8 Geo. IV. c. 27, and 3 and 4 W. and M. c. 10, by 16 Geo. III. c. 30, which latter is also repealed by 7 and 8 Geo. IV. c. 27.

(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

(0) 1 Hal. P. C. 495. 1 Hawk. P. C. 161.

(p) 1 Hal. P. C. 496.

(g) 1 Hawk. P. C. 71.

(r) Puff. L. of N. 1. 2, c. 5.

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. Č. 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.

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

(4) In New-York the excuses numbered above as 5 and 6, do not exist.

« EdellinenJatka »