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cipal counsel on the circuit, who all concurred in opinion, that it

was only manslaughter; and so it was ruled. (2) Self's case. Cases may occur in which the correction is not inflicted by Correction by means of any active and personal violence, but by a system of privation and privation and ill treatment. The following case seems to be of ill treatment. this nature :—The prisoner, upon his apprentice returning to him

from Bridewell, whither he had been sent for misbehaviour, in a
lousy and distempered condition, did not take that care of him
which his situation required, and which he might have done; the
apprentice not having been suffered to lie in a bed on account of
the vermin, but being made to lie on the boards for some time
without covering, and without common medical care. In this
case, the medical persons who were examined were of opinion,
that the boy's death was most probably occasioned by his ill
treatment in Bridewell, and the want of care when he went home;
and they inclined to think, that if he had been properly treated
when he came home, he might have recovered. But, though
some harsh expressions were proved to have been spoken by the
prisoner to the boy, yet there was no evidence of any personal
violence having been used by the prisoner : and it was proved that
the apprentice had had sufficient sustenance; and the prisoner
had a general good character for treating his apprentices with hu-
manity; and bad made application to get this boy into the hos-
pital.' Under these circumstances, the Recorder' left it to the
jury to consider whether the death of the boy was occasioned by
the ill treatment he received from his master, after returning from
Bridewell; and whether that ill treatment amounted to evidence
of malice, in which case they were to find him guilty of murder.
At the same time they were told, with the concurrence of Mr.
Justice Gould and Mr. Baron Hotham, that if they thought other-
wise, yet, as it appeared that the prisoner's conduct towards his
apprentice was highly blameable and improper, they might, under
all these circumstances, find him guilty of manslaughter; which
they accordingly did. (r) And upon the question being afterwards
put to the Judges, whether the verdict were well found, they all
agreed that the prisoner should be burned in the hand and dis-
charged.(s)
In a note upon the foregoing case Mr. East says,

66 I have been " the more particular in stating the ground of the decision in this case,

because Mr. Justice Gould's note of the case, from “ whence this is taken, is evidently different from another re

port (t) of the opinion of the Judges in this case, from whence “ it might be collected, that there could be no gradation of guilt “ in a matter of this sort, where a master, by his ill conduct or “ negligence, had occasioned or accelerated the death of his ap

prentice, but that he must either be found guilty of murder or “acquitted; a conclusion which, whether well or ill founded, cer

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(9) Anon. Worcester Spr. Ass. 1775. p. 226, 227. Serj. Forster's MS. 1 East. P. C. c. 5. (8) Easter T. 16 G. 3. De Grey, C. J. S. 37. p. 261.

and Ashhurst, J. being absent. (r) Rex v. Self, 0. B. 1770, MS. (1) 1 Leach. 137. Gould, J. 1 East. P. C. c. 5. s. 13.

common oc

tainly cannot be drawn from this statement of the case. The
same opinion, however, is stated, in the Old Bailey Sessions
papers, to have been thrown out by the Recorder in Wade's
case.” (u)

Where persons employed about such of their lawful occupa- Persons foltions, from whence danger may probably arise to others, neglect lowing their the ordinary cautions, it will be manslaughter at least, on account

cupations. of such negligence. (w) Thus, if workmen throw stones, rubbish, or other things, from a house, in the ordinary course of their business, by which a person underneath happens to be killed, if they did not look out and give timely warning to such as might be below, and there was even a small probability of persons passing by, it will be manslaughter. (2) It was a lawful act, but done in an improper manner. It has indeed been said, that if this be done in the streets of London, or other populous towns, it will be manslaughter, notwithstanding such caution be used. (y) But this must be understood with some limitation. If it be done early in the morning, when few or no people are stirring, and the ordinary caution be used, the party may be excusable: but when the streets are full, such ordinary caution will not suffice; for, in the hurry and noise of a crowded street, few people hear the warning, or sufficiently attend to it. (*)

So if a person, driving a cart or other carriage, happen to kill
another, and it appears that he might have seen the danger, but
did not look before him, it will be manslaughter, for want of due
circumspection. (a) Upon this subject the following case is re-
ported :-A. was driving a cart with four horses in the highway at
Whitechapel; and he being in the cart, and the horses upon a
trot, they threw down a woman, who was going the same way
with a burthen upon her head, and killed her. Holt, C. J.,
Tracy, J. Baron Bury, and the Recorder Lovel, held this to bé
only misadventure. But by Holt, C.J., if it had been in a street
where people usually pass, it had been manslaughter. (b) But
upon this case the following observations have been made: “ It

must be taken for granted from this note of the case, that the
“accident happened in an highway where people did not usually

pass ; for otherwise the circumstance of the driver's being in
“ his cart, and going so much faster than is usual for carriages of
“ that construction, savoured much of negligence and impro-
“ priety: for it was extremely difficult, if not impossible, to stop
“ the course of the horses suddenly, in order to avoid any person
“ who could not get out of the way in time. And, indeed, such
“conduct, in a driver of such heavy carriages, might, under most
“ circumstances, be thought to betoken a want of due care, if

any, though but few, persons might probably pass by the same "road. The greatest possible care is not to be expected, nor is “ it required: but whoever seeks to excuse himself for having un“fortunately occasioned, by any act of his own, the death of an

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(u),Rex v. Wade, O. B. Feb. 1784,

Sess. Pap.

(2) Fost. 262. 1 East. P.C. c. 5. S. 38. p. 262.

(35) Fost. 262. i Hale 475.

(y) Rex v. Hull, Kel. 40.
(2) Fost. 263.
(a) Id. ibid.

(0) Anon. O. B. 1704. 1 East. P.C.
c. 5. S. 38. p. 263.

“other, ought at least to shew that he took that care to avoid it, “ which persons in similar situations are accustomed to do.”(c)

There is one species of criminal negligence, punishable by the provisions of the statute law, which may be mentioned in this place, though the offence is not made manslaughter. By the 10 Geo. 2. c. 31. if any waterman, between Gravesend and Windsor, receive into his boat or barge a greater number of persons than the act allows, and any passenger be then drowned, such waterman, being thereof lawfully convicted, is guilty of felony, and liable to be transported as a felon.(d)

SECT. VII.

of the Indictment anıl Judgment.

Indictment.

Judgment and punishment.

TAE indictment for manslaughter differs from the indictment for the higher crime of murder, in the omission of any statement as to malice, and of the conclusion that the party accused did kill and “ murder:' and we have seen that a bill of indictment for murder may be converted into one for manslaughter, by striking out such statement and conclusion.(e)

The offence of manslaughter is felony within the benefit of clergy; the punishment of which was formerly burning in the hand, and forfeiture of goods and chattels. (f) By the 19 G. 3. c. 74. the court had the power (which was generally exercised) of imposing upon the offender such a moderate pecuniary fine, as the circumstances of the case seemed to require, with imprisonment for any term not exceeding a year. (g) But by a late statute a more severe punishment may be inflicted. The 3 G. 4. c. 38. s. 1., reciting that the punishment of burning in the hand had long been deemed ineffectual and inexpedient, and that the other punishments of manslaughter were frequently inadequate to the aggravated circumstances of the offence, enacts, “ that whenever

any person shall be lawfully convicted of the offence of man“ slaughter, such person shall not be liable to be burned or “ marked in the hand, or in any part thereof, but such person “ shall be liable to be transported beyond the seas for the term of “ his or her natural life, or for any term of years, as the court “ before which any such person shall be convicted shall adjudge;

(c) 1 East. P.C. c. 5. s. 38. p. 263, P. C. c. 5. s. 38. p. 264. and see now 264.

50 G. 3. c. 48. by which the 28 G. 3. (d) It has been observed, that this c. 57. 30 G. 3. c. 36. and 46 G. 3. c. nay serve as a caution to stage coach- 136. are severally repealed, and vamen and others, who overload their rious new regulations are enacted. carriages for the sake of lucre, to the (e) Ante, 471. great danger of the lives of the pas- (f) i Hale 466. 4 Blac. Com. 193. sengers; the number of whom are re- (8) 19 G. 3. c. 74. s. 3 & 4. East. gulated by act of parliament. East. P. C. c. 5. s. 4. p. 218.

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“ or shall be liable, in case the said court shall think fit, to be

imprisoned only, or to be imprisoned and kept to hard labour “ in the common gaol, house of correction, or penitentiary house, “ for any term not exceeding three years; or shall be liable to “ such a pecuniary fine, as to the said court, in its discretion, “ shall seem meet; and such fine or other punishment imposed by “ virtue of this act, shall have the like effects and consequences 6 to the party on whom such fine or other punishment shall be so “ imposed, with respect to any discharge from the same or other “ felonies, or any restitution to his or her estates, capacities, and “ credits, as if he or she had continued liable to the former pu“ nishment of burning or marking in the hand, and had suffered “ such former punishment.”

The benefit of clergy is taken away from one species of manslaughter; namely, mortally stabbing another under circumstances within the statute | Jac. l. c. 8. which has been treated of in a former part of this Chapter.(i)

(1) Ante, 490. And see 4 Blac. Com. 193. 1 East. P. C. c. 5. 8. 4. p. 218.

CHAPTER THE FOURTH.

OF EXCUSABLE AND JUSTIFIABLE HOMICIDE.

We may now properly proceed to treat of such homicide as, not amounting even to manslaughter, must be considered either as excusable or justifiable: excusable when the person, by whom it is committed, is not altogether free from blame; and justifiable when no blame whatever is attached to the party killing.

Excusable Homicide is of two sorts; either per infortunium, by misadventure; or se et sua defendendo, upon a principle of self-defence. The term excusable homicide imports some fault in the party by whom it has been committed ; but of a nature so trivial that the law excuses such homicide from the guilt of felony, though in strictness it deems it to be deserving of some degree of punishment. It appears to be the better opinion, that the punishment inflicted for this offence was never greater than a forfeiture of the goods and chattels of the delinquent, or a portion of them : (a) and, from as early a time as our records will reach, a pardon and writ of restitution of the goods and chattels have been granted as a matter of right, upon payment of the expenses of suing them out. At the present time, in order to prevent this expense, it is usual for the Judges to permit or direct a general verdict of acquittal in cases where the death has notoriously happened by misadventure, or in self-defence. (b) There may, however, be cases so bordering upon, and not easily distinguishable from, manslaughter, that the offender may, with propriety, be put to sue out his pardon, according to the provisions of the statute of Gloucester, (c) and consequently not be entitled to a general verdict of acquittal. (d)

Justifiable homicide is of several kinds : as it may be occasioned by the performance of acts of unavoidable necessity, where no shadow of blame can be attached to the party killing; or by acts done by the permission of the law, either for the advancement of public justice, or for the prevention of some atrocious crime.

(a) 4 Blac. Com. 188. The penalty et sequ. Fost. 282. for this offence is said by Sir Edward (6) 4 Blac. Com. 188. Fost. 288. Coke to have been anciently no less 1 East. P. C. c. 5. s. 8. p. 222. than death, 2 Inst. 148, 315.: but this (c) 6 Ed. I. c. 9. is denied by other writers, 1 Hale (d) Fost. 289. P. C. 425. i Hawk. P. C. c. 29. s. 20,

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