1. 2, ch. 6. Valer. Maxim. 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 Nov. 80, c. 50. acts, the civil law expelled all sturdy vagrants from the city; and in our own law, all idle persons or vagabonds, or idle and disorderly persons, rogues and vagabonds, and incorrigible rogues, are offenders against the good order of the kingdom, and punishable accordingly (j). Gaming. The offence of gaming is provided against by various statutes. By 16 Car. 2, c. 7, if any person by playing or betting shall lose more than 100%. at a time, he shall not be compellable to pay the same, and the winner shall forfeit treble the value, one moiety to the king, and the other to the informer. By 9 Ann. c. 14, all bonds and other securities given for money won at play, or money lent at the time to play with, are void, and all mortgages and incumbrances of lands made upon the same consideration, shall be and enure to the use of the heir of the mortgagor. If any person at any time or sitting, loses 10% 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. The plaintiff may by bill in equity examine the defendant himself upon oath, and in any of these suits no privilege of parliament is allowed. 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as in case of wilful perjury.(k) All (j) By 5 Geo. 4, c. 83, the provisions theretofore made relative to vagrants are repealed, and the provisions of 32 Geo. 3, c. 45, which give power of passing convicts on discharge from prison, are repealed. Persons who are under the statute to be deemed idle and disorderly persons are defined by s. 3 of the act; and such persons are liable, on conviction, to be confined in the house of correction, and kept to hard labour for not exceeding one month. By s. 4, persons committing certain offences therein described are to be deemed rogues and vagabonds, and be liable to be imprisoned and kept to hard labour for not exceeding three months. By s. 5, persons committing the offences therein described shall be deemed incorrigible rogues and vagabonds, and shall be liable to be imprisoned until the next general or quarter sessions, and to be kept to hard labour. By s. 9, justices may bind persons by recognizance to prosecute vagrants at sessions. By s. 13, lodging-houses suspected to conceal vagrants may be searched. (k) By 18 Geo. 2, c. 34, s. 8, if any person shall win or lose at play, or by betting, at any one time, the sum or value of 107., or within twenty-four hours the sum or value private lotteries by tickets, cards or dice, and 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 200%. for him that shall erect such lotteries, and 50%. a time for the players. To prevent the multiplicity of horse races: by 13 Geo. 2, Horse racing. c. 19, no plates or matches under 50%. value, shall be run upon penalty of 2001. to be paid by the owner of each horse running, and 100% by such as advertise the plate. By 18 Geo. 2, c. 34, the statute 9 Ann. is enforced, and the forfeitures of that act may now be recovered in a court of equity; and if a man be convicted upon information or indictment of winning or losing at play, or by betting at any one time 10% or 20, within twenty-four hours, he shall be fined five times the sum for the benefit of the poor of the parish. The qualifications for killing game, or exemptions from the Destroying penalties inflicted by the statute law, are the having a freehold game. estate of 100%. a-year; a leasehold for ninety-nine years of 150% per annum; the being the son and heir apparent of an esquire or person of superior degree; and being the owner or keeper of a forest, park, chase, or warren. The destroying of game is by the laws called the game laws constituted an offence, for which punishments chiefly pecuniary are inflicted. The offence is 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 (1). of 207., he is liable to be fined five times the value of the sum so won or lost, to be paid to the poor of the parish or place. (1) By 1 & 2 Wm. 4, c. 32 (an abstract whereof, see ante, p. 254), all former statutory game laws were repealed, except 9 Geo. 4, c. 69, by which it is enacted, that persons taking or destroying game by night, shall be committed to prison; for the first offence three months, and kept to hard labour, and to find sureties; second offence six months, and kept to hard labour, and to find sureties; and for the third offence be liable to transportation. By s. 2, owners or occupiers of land, lords of manors, or their servants, may apprehend offenders; and offenders assaulting or offering violence, are to be deemed guilty of a misdemeanor, and are liable to be transported for seven years, or imprisoned for two years. By s. 3, any justice may issue his warrant for apprehending offenders. By s. 8, convictions are to be returned to the quarter sessions, and registered, and they may be given in evidence. By s. 9, if persons, to the number of three, being armed, enter any land for the purpose of taking or destroying game, &c., they shall be deemed guilty of a misdemeanor. Of crimes CHAPTER XIV. OF HOMICIDE. THE crimes and misdemeanors which affect and injure affecting indi- individuals or private subjects, are principally of three kinds; against their persons, their habitations, and their property. viduals. Steirnhook, 1. 1, c. 5. De mor. Germ. c. 12. Homicide. If these injuries were confined to individuals only, and affected 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 has been already explained. But these wrongs are of a much more extensive consequence, because they involve a violation of the laws of nature; of the moral as well as political rules of right, and include in them a breach of the public peace, besides, by their example and evil tendency, threatening and endangering the subversion of civil society. Consequently, in addition to the private satisfaction due 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. The prosecution of these offences is 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, as in the old Gothic constitution there was a tenfold punishment inflicted on all delinquents; first, for the private wrong to the party injured; secondly, for the offence against the king for disobedience to the laws; and thirdly, for the crime against the public by their evil example. In which we may trace the groundwork in what Tacitus tells us of the Germans, that whenever offenders were fined, part of the fine was paid to the king or the state, and part to the plaintiff or his relations (a). 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, is of three kinds; justifiable, 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. (a) "Pars mulctæ regi, vel civitati, pars ipsi qui vindicatur vel propinquis ejus, exsolvitur." Tac. De mor. Germ. c. 12. Justifiable homicide is of different kinds. First, such as is Justifiable owing to some unavoidable necessity, without any will, intention homicide. or desire, and without any inadvertance or negligence in the party killing, and therefore, without any shadow of blame. for instance, by virtue of such an office as obliges one in the execution of public justice to put a malefactor to death, who has forfeited his life by the laws and verdict of his country. But the law must require it, otherwise it is not justifiable, therefore, wantonly to kill the greatest malefactors, a felon or a traitor, attainted or outlawed, uncompelled and extrajudicially 1 Hal. P. C. is murder. But 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, or for the prevention of some atrocious crime which cannot otherwise be avoided. 497. For advancement of public justice. 494. 1 Hawk. P. C. Homicide committed for the advancement of public justice is, where an officer in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him; or if an officer or any private person attempts to take a 1 Hal. P. C. man charged with felony and is resisted; and in the endeavour to take him kills him. In case of a riot or other rebellious 71. assembly, the officers endeavouring to disperse the mob are justifiable in killing them, both at common law and by the riot act, 1 Geo. 1, c. 5. Where the prisoners in a gaol, or going to 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. 1 Hal. P. C. But in all these cases there must be an absolute necessity, otherwise it is not justifiable. 1 Hal. P. C. 494. Ibid. 495. 1 Hawk. P. C. 161. 496. Puff. L. of N. 1. 2, c. 5. Fol. 155. 488. Next, such homicide as is committed for the prevention of For prevention any forcible and atrocious crime, is justifiable by the law of of crime. nature and by the law of England, as it stood so early as the time of Bracton. If any person attempts a robbery or murder of another, or attempts to break open a house in the night time, which extends also to an attempt to burn it, and shall be killed 1 Hal. P. C. in such attempt, the slayer shall be acquitted and discharged. But this does not extend 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. The English law justifies a woman in killing one who attempts to ravish her: 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 felonious, but not the other. And 1 Hal. P. C. Bac. Elem. 34. 1 Hawk. P. C. 71. 485, 586. Excusable homicide. By misadventure. the forcibly attempting a crime of a still more detestable nature may be resisted by the death of the aggressor. For the one uniform principle that runs through our own and all other laws is, 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. Yet the law will not suffer any crime to be prevented by death, unless the same, if committed, would also be punished by death. Excusable homicide, imports by its name, some fault, error, or omission; but it is so trivial that the law excuses it from the guilt of felony. This offence is either per infortunium, by misadventure; or se defendendo, upon a principle of self preservation. 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 stander by, or where a 1 Hawk. P. C. person qualified to keep a gun is shooting at a mark, and 73, 74. 1 Hal. P. C. 473, 474. undesignedly kills a man. 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 was 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 at least manslaughter, and in some cases, according to the circumstances, murder. If a man be killed in boxing, it is felony or manslaughter. To whip another's horse whereby he runs over a child and kills him, is held to be accidental in the rider, for he has done nothing unlawful; but Hawk. P.C.73. manslaughter in the person who whipped him, for the act was a trespass of inevitably dangerous consequence. And if death ensues in consequence of an idle, dangerous and unlawful sport, the slayer is guilty of manslaughter. 1 Hal. P. C. 472. Hawk. P.C.74. In self-de- Homicide, in self-defence, or se defendendo, upon a sudden affray, is also excusable, rather than justifiable by the English law. This is what the law expresses by the word chance Staunf.P.C.16. medley, which by 24 Hen. 8, c. 5, and our ancient books, is 3 Inst. 55, 57. properly applied to such killing as happens in self defence upon a sudden rencounter; to excuse which it must appear that the slayer had no other possible, or at least probable means of escaping from his assailant. It is frequently difficult to distinguish homicide upon chance medley, from manslaughter in the proper legal sense of the word. But the true criterion Foster, 275, 276. 3 Inst. 55. |