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OF OFFENCES AGAINST THE PERSON,
In the present chapter we are to enter, in pursuance of the distribution before laid down, upon an account of the several species of crimes and misdemeanors, with the punishments annexed to each (a).
And here we shall pursue in general, and so far as the nature of our criminal law permits, the same arrangement which we adopted for the illustration of the law relative to civil injuries (6): and shall, consequently, be led to treat —first, of offences against the persons of individuals; secondly, against their property; and thirdly, against those public rights which belong in common to all the different members of the commonwealth.
First, then, with respect to those crimes which affect the persons of individuals.
[Were such offences as these, and such as are committed against the property of individuals, 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 volume. But the wrongs of which we are now to treat are of a much more extensive consequence; in the first place, because they are all considered as contempts of public justice, or (what is the same thing) of the Crown which is the fountain of that justice : secondly,
(a) Vide sup. r. 1.
(6) Vide sup. bk. V. C. VIII.
[because they include in them almost always a breach of the public peace : and, lastly, 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, 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 sovereign; in whom, by the tenure of our constitution, the jus gladii, or executory power of the law, entirely resides. Thus, too, in the old Gothic constitution, there was a threefold punishment inflicted on all delinquents : first, for the private wrong to the party injured ; secondly, for the offence against the sovereign by disobedience to the laws; and, thirdly, for the crime against the public by their evil example. Of which we may trace the groundwork in what Tacitus tells us of his Germans; that, whenever offenders were fined, “pars mulctæ regi, vel civitati, pars ipsi, qui vindicatur, vel propinquis ejus, exsolvitur”(c).
Of crimes injurious to the persons of private subjects the principal and most important is the offence of taking away life, which is the immediate gift of the great Creator; and of which, therefore, no man can be entitled to deprive either himself or another, except in some manner either expressly commanded in, or evidently deducible from, those laws, which the Creator has given us—the Divine laws of either nature or revelation.] The first offence, therefore, to be discussed in the present chapter will be that of,
I. 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 either free from legal guilt,—the circumstances being such
(c) De Mor. Germ. c. 12.
as to render it justifiable, or at least excusable; or else it is felonious (d).
1. Justifiable homicide is of divers kinds. First, such as is occasioned by the due execution of public justice, in putting a malefactor to death who hath forfeited his life by the laws of this 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, (such as a felon or a traitor, attainted or outlawed,) deliberately, uncompelled and extrajudicially, is murder (e). For, as Bracton very justly observes, "istud homicidium, si fit ex “ livore, vel delectatione effundendi humanum sanguinem, “ licet justè occidatur iste, tamen occisor peccat mortaliter, “propter intentionem corruptam” (f). And, further, 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 (9). 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 time,) yet declined to sit on the Crown side at the assizes or to try prisoners, having very strong objections to the legality of the usurper's commission (1); 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 judgments, when legal, must be executed by the proper officer or his appointed deputy: for no one else is required by law
(d) Blackstone describes homicide (vol. iv. p. 177) as of three kinds: justifiable, excusable and felonious; and this accords with the division of Hawkins; but there appears, under the existing law, to be no practical distinction between
justifiable and excusable homicide
(e) i Hale, P. C. 497.
(9) Hawk. P. C. b. 1, c. 28, s. 5; Hale, ubi sup.
(1) Burnet in vitam.
[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(i), even though it be the judge himself(k). It must, further, 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 versâ, it is murder; for he is merely ministerial, and, therefore, only justified when he acts under the authority and compulsion of the law. But if he changes one kind of death for another, he then acts by his own authority; which extends not to the commission of homicide otherwise than as according to the sentence; and besides, such licence might occasion a very gross abuse of his power.] The sovereign, indeed, may remit part of a sentence; for example, in the case of treason, the peculiar severities with which the sentence of death used to be accompanied, were in modern times often remitted ; but such exercise of mercy was not (it will be observed) an introduction of a different punishment from that authorized by the law (1).
Secondly, justifiable homicide may be committed for the advancement of public justice; as in the following instances: 1. Where a peace officer or his assistant, in the due execution of his office, arrests or attempts to arrest one who resists, and is consequently killed in the struggle (m); 2. Where, in case of a riot or rebellious assembly, such officers or their assistants kill any of the mob, in the endeavour to disperse them; which is justifiable both at common law and by the Riot Act, 1 Geo. I. c. 5(n); 3. Where the prisoners in a gaol assault the gaoler or officer, and he in his defence kills any of them; which is justifiable, for the sake of preventing an escape (o); 4. Where an officer or his assistant, in the due execution
(i) i Hale, P. C. 501; Hawk. P. C. b. 1, c. 28, s. 9.
(k) Dalt. Just. c. 150.
(1) See 4 Bl. Com. p. 92; 3 Inst. 52, 212,
(m) Foster, 270, 309; 1 Hale, P. C. 494.
(n) 1 Hale, P. C. 495; Hawk. P. C. b. 1, c. 65, ss. 11, 12. (0) 1 Hale, P. C. 496,
of his office, arrests or attempts to arrest a party for felony (p), or for a dangerous wound given ; and the party having notice thereof flies, and is killed by such officer or assistant in the pursuit (2); 5. Where, upon such offence as last described, a private person in whose sight it has been committed, arrests or endeavours to arrest the offender; and kills him in resistance or flight, under the same circumstances as above mentioned with regard to an officer (r). [But in all these cases, there must be an apparent necessity—that is, it must be shown that the party could not be otherwise secured, the riot could not be suppressed, the prisoners could not be kept in hold, unless such homicide was committed : otherwise, without such absolute necessity, it is not justifiable.
Thirdly, such homicide as is committed for the prevention of any forcible and atrocious crime (s), is justifiable by the law of nature (t); and also by the law of England as it stood so early as at the time of Bracton (u), and as it stands at the present day (x).] If any person attempts the robbery or murder of another, or attempts to break open a house in the night time, and shall be killed in such attempt, either by the party assaulted, or the owner of the house, or the servant attendant upon either, or by any other person present and interposing to prevent mischief, the slayer shall be acquitted and discharged (y). This reaches not to any crime unaccom
() But the officer is not protected (4) L. 3, tr. 2, c. 36. if he kill a man apparently com- (c) Sce Mawgridge's case, Keyl. mitting a misdemeanor, though the 128, 129. crime be really a felony. (The Queen (y) Fost. 274; 1 Hale, P. C. 488. v. Dodson, 20 L. J. (M. C.) 57.) This was expressly provided by (9) Fost. 271.
the statute 24 Hen. 8, c. 5; and (r) Fost. ubi sup.; 2 Hale, P. C. 77, though that statute was repealed by 82. As to the killing by a private 9 Geo. 4, c. 31 (now itself repealed person who arrests on suspicion only, by 24 & 25 Vict. c. 95), its repeal and is resisted, see 2 Hale, P. C. has made no alteration of the law as 83, 84; Fost. 318. It seems it is laid down in the text,—the statute of not justifiable.
Hen. 8, having been made in affirm(8) Fost, 275; Hawk. P. C. b. 1, ance of the common law. (See Fost. c, 28, ss. 21, 24.
275.) (t) Puff. L. of N. 1. ii. c. 5.