of any other person, who shall give his address, is authorized to secure the offender. The same statute contains provisions for the detention of vehicles and animals of which the person having the charge is taken into custody, and for compelling the owners of public vehicles to produce their servants. It prohibits, under penalties, the fighting or baiting of any bull, bear, badger, dog, cock, or other animal; and makes various regulations as to slaughterhouses for horses and other animals not intended for food.

9. Taking up dead bodies is also a misdemeanor at common law, unless done by lawful authority. This offence was sometimes committed in order to obtain subjects for dissection in the schools of anatomy; but is now quite unknown, regulations having been made for this purpose by the statute 2 & 3 Will. IV. c. 75. It is also an offence in those whose duty it is to bury the dead, to refuse to do so, and one cognizable by the temporal courts as well as by the courtsChristian.

10. Lastly, there is another offence 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; I mean the offence of destroying such beasts and fowls as are ranked under the denomination of gime: which, we may remember, was formerly observed to be an offence in all persons alike, who had not authority from the crown to kill game, by the grant of either a free warren, or at least a manor of their own. But the laws, called the game-laws, also inflicted additional punishments on persons guilty of this general offence, unless they were people of such rank or fortune as were therein particularly specified. All persons, therefore, of what property or distinction soever, that killed game out of their own territories, or even upon their own estates, without the king's licence expressed by the grant of a franchise, were guilty of the first original offence, of encroaching on the royal prerogative. And those indigent persons who did so, without having such rank or fortune as was generally called a qualification, were guilty not only of the original offence, but of the aggravations also, created by the statutes for preserving the game; which aggravations were so severely punished, and those punishments so implacably inflicted, that the offence against the sovereign was seldom thought of, provided the miserable delinquent could 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 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 the statutes, I shall not at present inquire. Neither shall I attempt to trace the legislation on this subject, but content myself with remarking that the possession of any qualification to kill game is now unnecessary; the right to do so depending simply on the payment of a tax, usually called a game certificate.

The offence of trespassing by night in pursuit of game, or in other words the crime of night-poaching, is, however, highly penal, and will probably remain so, until the game-laws have, by the advancing intelligence of the people, been entirely swept away.

CHAPTER XIV.

OF HOMICIDE.

1. Justifiable homicide-from necessity-for advancement of justice-for prevention of crime-2. Excusable homicide-from misadventure-in self-defence- -3. Felonious homicide-Felo de se-Manslaughter-Murder Malice-punishment.

WE are now, lastly, to consider those offences which in a more peculiar manner affect and injure individuals or private subjects; which are principally of three kinds—against their person, their habitations, and their property.

Of crimes injurious to the persons of private subjects, the most important is the offence of taking away life. The subject, therefore, of the present chapter will be the offence of homicide, in its several stages of guilt.

Now homicide 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.

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 to death a malefactor, who has 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.

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, 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. 3. In case of a riot, or rebellious assembly, as has already been explained. 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. 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, unless such homicide were committed otherwise, without such absolute necessity, it is not justifiable.

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. If any person attempts a robbery or murder of another, or attempts to break open a house in the night-time, and shall be killed in such attempt, the slayer shall be acquitted and discharged. As by the Jewish law, "if a thief be found breaking up, and he be "smitten that he die, no blood shall be shed for him: but if the sun be risen upon him, there shall blood be shed for him; for he "should have made full restitution."

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The Roman law justified homicide when committed in defence of the chastity either of one's self or relations; and so, according to Selden, stood the law in the Jewish republic. The English law likewise justifies a woman 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.

II. Excusable homicide is of two sorts; either per infortunium, by misadventure; or se defendendo, upon a principle of self-preservation.

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 stander-by; or where a person is shooting at a mark, and undesignedly kills a man; for the act may be lawful, and the effect merely accidental. 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; for the act of immoderate correction is unlawful. 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 has 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 consequence. And in general, if death ensues in consequence of an idle, dangerous, and unlawful sport, as shooting or casting stones in a town, and similar cases, the slayer is guilty of manslaughter, and not misadventure only, for these are unlawful

acts.

2. Homicide in self-defence, or se defendendo, upon a sudden affray is also excusable, and it must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime, which is not only a matter of excuse, but of justification. The self-defence I now speak of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden broil or quarrel, by killing him who assaults him. This is what the law expresses by the word chance-medley; in 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 this species of homicide from manslaughter. The true criterion seems to be this: when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter: but if the slayer has not begun to fight, or, having begun, endeavours to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide

by self-defence. time to be considered: for if the person assaulted does not fall upon the aggressor till the fray is over, or when he is running away, this is revenge, and not defence.

And as the manner of the defence, so is also the

There is one species of homicide, se defendendo, where the party is equally innocent as he who occasions his death. As in that case mentioned by Lord Bacon, where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrust the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man's is excusable through unavoidable necessity and the principle of selfdefence: since their both remaining on the same weak plank is a mutual, though innocent, attempt upon, and endangering of, each other's lives,

III. Felonious homicide is an act of a very different nature from the former, being the killing of a human creature, of any age or sex, without justification or excuse. This may be done either by killing one's self, or another man.

Self-murder, the pretended heroism, but real cowardice of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure, was punished by the Athenian law with cutting off the hand which committed the desperate deed. And the law of England ranks this among the highest crimes, making it a peculiar species of felony, a felony committed on one's self. A felo de se therefore, is he that deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death: as if, attempting to kill another, he runs upon his antagonist's sword, or, shooting at another the gun bursts and kills himself. The party must be of years of discretion, and in his senses, else it is no crime. But this excuse ought not to be strained to that length to which our coroner's juries are apt to carry it, viz., that the very act of suicide is an evidence of insanity; as if every man who acts contrary to reason had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer. The law very rationally judges that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong, which is necessary, as was observed in a former chapter, to form a legal excuse. And therefore if a real lunatic kills himself in a lucid interval he is a felo de se as much as another man.

But now the question follows, what punishment can human laws inflict on one who has withdrawn himself from their reach? They can only act upon what he has left behind him, his reputation and fortune; on the former by an ignominious interment by night, and