mans; whom Tacitus (f) describes to have been bewitched with a spirit of play (f) De Mor. Germ. c. 24. 9 Geo. L, c. (17) The penalties for winning or losing to a certain amount are repealed by 8 and 9 Vic., c. 109, which makes new provisions.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-48 377 ment of winning or losing at play, or by betting at any one time 107. or 20%., 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. (18) 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 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 [*174] forest law), *to be a trespass and offence in all persons alike who have not authority from the crown to kill game (which is royal property), by the grant of either 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. This 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 100l. *per annum: [*175] 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 15. (i) See book II, page 417, &c. (j) Burn's Justice, Game, § 3. (18) 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 Anne were repealed by 8 and 9 Vic., c. 109, s. Section 18 of the same statute made all wagers and wagering contracts null and void, and prohibited 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 Campb., 37; Marryat v. Broderick, 2 M. & 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. & McC., 178. In the United States wagers are generally made illegal by statute. 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 persons, 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. (19) 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 affect 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 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, besides the private satisfaction due and given in many cases to the individual, by action for the private wrong, [*177] 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 (k) Burn's Justice, tit. Game. (19) 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 offense 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. 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 very little; but the third is the highest crime against the law [*178] 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 commission; (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) [*179] 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 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 introduo (a) Stiernhook, l. 1, c. 5. (i) Finch, L. 31. 3 Inst. 52. (b) De mor. Germ. a. 12. P. C. 497. (c) 1 Hal. P. C. 497. (g) 1 Hal. P. C. 501, 1 Hawk. P. C. 70. (d) fol. 180 (h) Dalt. Just. e. 150, tion 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. c. 5. 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. (1) 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 cap non posset, occidere *permittunt." 3. In case of a riot, or rebellious assembly, the officers endeavouring to disperse the mob are justi[*180] fiable in killing them, both at common law, (o) and by the riot act, 1 Geo. I, 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 ir hold, the deer-stealers could not but escape, unless such homicide were committed: otherwise, without such absolute necessity, it is not justifiable. (2) (k) 3 Inst. 52, 212. (k) 3 Inst. 52, 212. (1) 1 Hal. P. C. 494. 1 Hawk. P. C. 71. (m) 1 Hal. P. C. 494. (p) 1 Hal. P. C. 496. (1) These statutes are since repealed. (2) "In all cases, whether civil or criminal, when persons having authority to arrest of imprison, and using the proper means for that purpose, are resisted in so doing, they may repel force with force, and need not give back; and if the party making resistance is un avoidably killed in the struggle, this homicide is justifiable.' 1 Russell on Crimes, p. 546. "But, generally, when one refuses to submit to arrest after he has been touched by the officer, or endeavors to break away after the arrest is effected, he may be lawfully killed, provided this extreme measure is necessary. And, in cases of felony, the killing is justifi able before an actual arrest is made, if in no other way the escaping felon can be taken." 2 Bishop Cr, L., 4th ed., § 660. See also 1 Bish. Cr. Pro., § 155, et seq. "If a person having actually committed a felony, will not suffer himself to be arrested, but stands on his own defense, or fly so that he cannot possibly be apprehended alive by those who pursue him, whether private persons or public officers, with or without a warrant from a magistrate, he may be lawfully slain by them. 1 Hawk. P. C., c. 28, § 11. If a felon flies, and refusing to stop, is killed by his pursuers, the homicide is justifiable: Fost., 271; but in cases of misdemeanor or breaches of the peace, if the criminal flies and will not stop, killing him is not justifiable. Still, in such cases, if he is caught and resists the officer and will not suffer arrest, the latter may kill him, if necessary. East P. C., ch. 5, § 70. If a person resisting arrest is killed, the homicide is justifiable. State v. Anderson, 1 Hill (S. C.). 327; Clements v. State, 50 Ala., 117; Reg. v. Dadson, 1 Eng. L & Eq., 566; 14 Jur., 1051. To justify the killing, a felony must have been committed, the person killed must have notice of the intention to arrest, and must have refused to submit. State v. Roane, 2 Dev., 28. If prisoners attempt to break jail and escape, and, in preventing it, the jailer kill one, the homicide is justifiable: 1 Hawk. P. C., c. 28, § 3; but it must appear to the jailer that the escape can in no other way be prevented. East P. C., ch. 5, § 91. Under the Texas statute, an officer is not justified in killing a convict escaped from the penitentiary, in trying to recapture him. Wright v. State, 44 Tex., 645. Query, whether, apart from such stat ute, the killing would not in such case be justifiable under the authority of Hawkins and Foster cited above, if all offenses punished by imprisonment in the state prison are felonies. The killing of those engaged in rioting or breaches of the peace is justifiable, if they refuse to desist on demand; this even by private persons, if in no other way the riot can |