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Imprisonment, which is constraint put upon the person by the authority of the law.

To these offences may be added Kidnapping, the forcible abduction or stealing away of a man, woman, or child from their own country, and sending them into another. This offence was noticed also in the Jewish Law*:"He that stealeth a man and selleth him, or if he be found in his hand, he shall surely be put to death." So likewise in the Roman Law, Plagium, the offence of buying, selling, taking or keeping as a slave, a freeman, was severely punished. The Plagiarius was generally condemned to the mines.

114. The English Law also takes cognizance of injuries affecting a man's health, arising, not from Malice, but from neglect. Thus a remedy is given when a person is injured by selling him unwholesome provisions or wine; or by a neighbour's exercise of a noisome trade which infects the air. There is also a legal remedy given to a man for the neglect or unskilful management of his physician, surgeon, or apothecary, which is called mala praxis. The same is the course of the Roman Lawt: Imperitia culpæ adnumeratur: veluti si medicus curationem deliquerit, male quampiam secuerit, aut perperam ei medicamentum dederit. The Injuries which are under our consideration, in this part of our work, are, for the most part, accompanied with Malice; but the physician's Indifference to his patient's health, and Disregard of the Trust reposed in him, are held by the Legislator to give to such damage, so inflicted, the character of Wrong, as well as Damage.

Malicious Intention is requisite to the notion of the Wrongs or Crimes here spoken of. But in the cases

'Exodus xxi. 16.

+ Inst. iv. 3. Want of skill is accounted an offence; as in a case in which the physician leaves off his attendance on the patient while the cure is incomplete, or performs a surgical operation wrongly, or gives pernicious medicines.

which have just been mentioned, the Malicious Intention is inferred from the act itself. In all cases of personal damage inflicted, the law infers malicious intention, except there be some circumstances to excuse, mitigate, or justify the act.

115. Homicide is excusable when it is committed without intention; in the Law phrase, by Misadventure, per infortunium; as in the case mentioned in the Jewish Law*: When a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour that he die. But though this is termed excusable Homicide, the Jewish Law did not protect the slayer till he had reached one of the Cities of Refuge; and the English Law levied a fine upon the delinquent, and made him forfeit the thing which was the instrument of death, under the name of a Deodand. The fine has been remitted at the suit of the person concerned as far back as our legal records reach; but the law of Deodand is still in force. These enactments seem to be intended to express the high value which the law sets upon human life; so that it always supposes some degree of blame in the conduct of him who takes away life, except by express permission of the Law itself.

116. In the same spirit, the Law does not generally allow Games, which may end in blood, to be received in justifications of homicide; as Tilting, Sword-playing, Boxing. And in general, if death ensue in consequence of idle, dangerous, and unlawful acts, as shooting, or casting stones in a town, the slayer is guilty of Manslaughter, and not of Misadventure only. But to show how much such distinctions depend upon the actual law, we may observe, that by the English Law, if the king command or

*Deut. xix. 5.

permit such diversions, and death ensue, it is only Misadventure. In like manner, by the Laws both of Athens and Rome, he who killed another in the Pancratium or Public games, authorized or permitted by the State, was not held guilty of Homicide*. Si quis colluctatione, vel in pancratio, vel pugilis, dum inter se exercentur, alius alium occiderit, cessat Aquileia (Lex), quia gloriæ causâ et virtutis, non injuriæ gratia, videtur damnum datum.

117. Homicide in Self-defence, se defendendo, upon a sudden affray, is excusable rather than justifiable by the English Law. When a man protects himself from assault in an unpremeditated quarrel, and kills him who assaults him, it is termed by the Law chance-medley; (or, as some choose to write it, chaud medley;) which signifies a casual affray, (or else an affray in the heat of blood, chaude meslée). This term is rightly applied, when the slayer engages in no struggle, except what is necessary for self-defence.

118. When Homicide results from sudden heat of passion, arising naturally from provocation, without an intention previously formed, it is in English Law termed Manslaughter; as when one person kills another in a sudden quarrel. For the Law pays, say the Commentators, such regard to human frailty, as not to put hasty acts, and deliberate acts, on the same footing with regard to guilt. But in cases where homicide is committed upon provocation, if there be a sufficient cooling time, for passion to subside, and reason to interpose; and if the person so provoked afterwards kill the other, this is deliberate revenge, and not heat of blood, and amounts to murder.

119. Murder is Homicide committed with previous intention, which is termed Malice prepense, or Malice aforethought. This is the most atrocious of

Crimes.

Plato Leg. Lib. VII. Dig. ix. 2. 7. † Blackstone, Iv. 191.

120. Homicide is justifiable by the Law of England when it is committed for the prevention of any forcible and atrocious crime. If a person attempts robbery or murder, or endeavours to break open a house in the night-time, and is killed in such attempt, the slayer is acquitted*. The Jewish Law had the like rulest: If a thief be found breaking up, and be smitten that he die, there shall no blood be shed for him. So also in the Roman Law: the Law of the Twelve Tables was, Si nox (noctu) furtum faxit, sim (si eum) aliquis occisit (occiderit) juræ cæsus esto. But there was, in this case, to be no attempt at secrecy on the part of the slayer; but, on the contrary, a loud appeal to any one within hearing ‡; Lex xII. Tabularem furem noctu deprehensum occidere permittit, ut tamen id ipsum clamore testificatur. In the daytime, the person attacked by a robber is allowed to put him to death if he cannot otherwise defend himself: but we are not, by the English law, allowed to kill any one in order to prevent a crime, if the crime be unaccompanied by violence. In this case, the law requires us to cause the offender to be legally apprehended and tried. So also the Jewish law, in the place already quoted§: If the sun be risen upon him, there shall be blood shed for him, for he should make full restitution. And the Roman Law is similar||: Interdiu deprehen

* By the more modern decisions of law, the distinction of night and day is no longer noticed. The owner is now understood to be entitled to defend his own to the last extremity; subject to the condition of showing that that extremity was requisite for the defence.

† Exod. xxii. 2.

Dig. ix. 2. 4. The Law of the Twelve Tables makes slaying a thief detected in the night to be allowable, provided the slayer call aloud on the occasion of the act.

Exodus xxii. 3.

Dig. ix. 2, 3. A thief detected by day may be slain if he defend himself with a weapon, and if, as before, the slayer call aloud. And if a man slay him who assaults him with a weapon

sum ita (lex) permittit occidere, si is se telo defendat, ut tamen æque cum clamore. testificetur. And again : Sed et si quemcunque alium ferro se petentem quis occiderit, non videbitur injuriâ occidisse; et si metu quis mortis furem occiderit. Sin autem cum possit adprehendere maluit occidere, magis est ut injuriâ fecisse videatur.

121. The Laws of Solon*, and the proposed Laws of Platot, agree with those already mentioned, in making a wide distinction between the modes of resistance permitted against the nocturnal and the diurnal thief. It has been discussed among Jurists‡, what is the ground of this difference. The reason which they assign is this: that the Law does not allow a man to be put to death by a private hand, on account of an expected loss for which the law can give redress; but only on account of danger to the person, which may be beyond redress; that therefore by day, when the person attacked can see the extent of his danger, he is justified only to the extent of his danger, and so far as the wrongs are of an irremediable kind: but that by night, when the unknown extent of the danger may lead him to believe it extreme, and when aid and testimony are difficult to obtain, he is justified to the extent of his fear. The Law is willing to accept such justification, because it cannot afford him redress any other way.

122. When a person commits acts of violence against another, having received extreme Provocation, but not being in danger, by the Law of England, the provocation mitigates, but does not justify the offence. The Mitigation is not available, if there have intervened time sufficient for the passions to cool for if

:

it is justifiable; and if a man slay a robber, being in fear of his life. But if he was able to apprehend him, and chose rather to slay him, it is not justifiable. + Legg. Lib. ix.

* Demosth. adv. Timocrat.

Grot. B. et P. II. i. 12

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