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prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12. no person, however qualified to kill, may make merchandize of this valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification. (19)

(19) The 58 G. 3. c. 75. has imposed a penalty of 51. on the buying of game, a regulation almost indispensable as a part of the present system of game laws; but the system itself has been repeatedly before the legislature within a few years, and though difficulties have occurred, which have caused the subject to be as often thrown aside, yet it seems certain that some fundamental change will take place in it ere long, and, therefore, I think it unnecessary to give an account of the various decisions which are reported on the present state of these laws.

CHAPTER THE FOURTEENTH.

OF HOMICIDE.

IN the ten preceding chapters we have considered, first,

such crimes and misdemesnors 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 volume. 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, [ 177 ) 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 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 threefold 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 crime against the public by their evil example'. Of which we may trace the groundwork, in what Tacitus tells us of his Germans b; that, whenever offenders were fined, “ pars mulctae regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, « exsolvitur.(1)

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THESE crimes and misdemesnors 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 of nature that man [ 178 ] is capable of committing.

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(1) See ante, p.5. 7. In the French law, the crime and the civil injury are kept distinct; the action for damages may go on at the same time with, or after the public prosecution, and before the same judges and jury. Code d'Instruction Criminelle. Disp. Prel.

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· 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 extrajudicially, is murder. For, as Bracton very justly observes, “ istud

homicidium, si fit ex livore, vel delectatione effundendi hu66 manum sanguinem, licet justè occidatur iste, tamen occisor o peccat mortalitur, 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. 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'; a distinction perhaps rather too refined ; since the punishment of crimes is at least as necessary to society, as maintaining the boundaries of property. (2) Also such judgment, when legal,

< 1 Hal. P. C. 497. ei Hawk.P.C. c. 28, s.4. i Hal. P.C. 497. 4 1.3. tr.2. c.4.

f Burnet in his life.

(2) It appears from his life, that for some time after his elevation to the bench till the exccution of Ch. 1., sir M. Hale sate indifferently on both sides of the court on the circuit; but that even then“ he made distinction between common and ordinary felonies, and offences against the state ; for the last he would never meddle in them, for he thought these might be often legal and warrantable actions, and that the putting men to death on that account was murder; but for the ordinary felonies, he at first was of opinion, that it was as necessary even in times of usurpation to execute justice in those cases, as in matters of property.” pp. 38. 40.

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 8: even though [ 179 ] it be the judge himself". 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 versá, it is murderi : 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 licence 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 introduction 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. (3)

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, either in a civil or criminal case, 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 m.

8 i Hal. P.C. 501. 1 Hawk. P.C. * 3 Inst. 52. 212. c. 28. s.9

11 Hal. P. C. 494. 1 Hawk. P.C. h Dalt. Just. c.150.

c. 28. ss. 11, 12. 17, 18. Finch. L.31. 3 Inst.52. Hal. m i Hal, P. C.494. P.C. 501.

(3) See post, Ch.32.

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