the same inconvenient or dangerous to pass, either positively, by actual obstructions, or negatively, by want of reparations. For both of these, the person so obstructing, or such individuals as are bound to repair and cleanse them, or (in default of these last) the parish at large, may be indicted, distrained to repair and mend them, and in some cases fined. And a presentment thereof by a judge of assize, etc., or a justice of the peace, shall be in all respects equivalent to an indictment. Where there is a house erected or an inclosure made upon any part of the king's demesnes, or of a highway, or common street, or public water, or such like public things, it is properly called a purpresture. 2. All those kinds of nuisances (such as offensive trades and manufactures) which, when injurious to a private man, are actionable, are, when detrimental to the public, punishable by public prosecution, and subject to fine according to the quantity of the misdemeanour; and particularly the keeping of hogs in any city or market town is indictable as a public nuisance. All disorderly inns, or ale-houses, bawdy houses, gaming houses, stage-plays unlicensed, booths and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may, upon indictment, be suppressed and fined. Inns in particular, being intended for the lodging and receipt of travellers, may be indicted, suppressed, and the inn-keepers fined, if they refuse to entertain a traveller without a very sufficient cause: for thus to frustrate the ends of their institution is held to be disorderly behaviour. 4. By statute 10 and 11 W. III. c. 17, all lotteries are declared to be public nuisances, and all grants, patents, or licenses for the same to be contrary to law. But, as state lotteries have for many years past, been found a ready mode for raising the supply, an act was made, 19 Geo. III. c. 21, to license and regulate the keepers of such lottery-offices. 5. The making and selling of fireworks and squibs, or throwing them about in any street, is, on account of the danger that may ensue to any thatched or timbered buildings, declared to be a common nuisance by statute 9 and 10 W. III. c. 7, and therefore is punishable by fine. And to this head we may refer (though not declared a common nuisance) the making, keeping, or carriage of too large a quantity of gunpowder at one time or in one place or vehicle, which is prohibited by statute 12 Geo. III. c. 61, under heavy penalties and forfeitures. 6. Eaves-droppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance, and presentable at the court-leet, or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour. 7. Lastly, a common scold, communis rixatrix (for our law-Latin confines it to the feminine gender), is a public nuisance to her neighborhood. For which of

fence she may be indicted, and, if convicted, shall be sentenced to be placed in a certain engine of correction called the trebucket, castigatory, or a cucking-stool, which, in the Saxon language, is said to signify the scolding stool, though now it is frequently corrupted into ducking-stool, because the residue of the judgment is, that when she is so placed therein, she shall be plunged in the water for her punishment.

Idleness. Laws Against Luxury. Gaming.

6. Idleness in any person whatsoever is also a high offence against the public economy.

7. Under the head of public economy may also be properly ranked all sumptuary laws against luxury, and extravagant expenses in dress, diet, and the like; concerning the general utility of which to a state, there is much controversy among the political writers.

8. Next to that of luxury naturally follows the offence of gaming, which is generally introduced to supply or retrieve the expenses occasioned by the former.

Destroying Game.

Lastly, there is another offence, constituted by a variety of acts of parliament, which are so numerous and so confused, and the crime itself 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, associations having been formed all over the kingdom to prevent its destructive progress. I mean the offence of destroying such beasts and fowls as are ranked under the denomination of game.

Homicide. Kinds.

Chapter XIV.

OF HOMICIDE.
176-205.

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 is capable of committing. I. Justifiable homicide is of divers kinds.

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 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. 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. Also, such judgment, when legal, 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, even though it be the judge himself. 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 versa, 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 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 license 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. But this doctrine will be more fully considered in a subsequent chapter.

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 vigor; or in such instances where it is committed for the prevention of some atrocious crime which cannot otherwise be avoided.

Homicide for Public Justice.

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 endeavor to take him kills him. 3. In case of a riot, or rebellious assembly, the officers endeavoring to disperse the mob are justifiable in killing them, both at common law, and by the riot act, I Geo. I. c. 5. 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. 5. If trespassers in forests, parks, chases, or warrens will not surrender themselves to the keepers, they may be slain, by virtue of the statute 21 Edw. I. st. 2, de malefactoribus in parcis, and 3 and 4 W. and M. c. 10. 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, the deerstealers could not but escape, unless such homicide were committed; otherwise, without such absolute necessity, it is not justifiable. 6. If the champions in a trial by battle killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, who was thereby presumed to have decided in favor of the truth.

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; and also by the law of England, as it stood so early as the time of Bracton, and as it is since declared by statute 24 Hen. VIII. c. 5. If any person attempts a robbery or murder of another, or attempts to break open a house, in the night time (which extends also to an attempt to burn it), and shall be killed in such attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or the breaking open of any house in the day time, unless it carries with it an attempt of robbery also.

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: but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other. And I make no doubt but the forcibly attempting a crime of a still more detestable nature may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own and all other laws seems to be this,-that where a crime in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does, who holds "that all manner of force without right upon a man's person puts him in a state of war with the aggressor; and, of consequence, that, being in such a state of war, he may lawfully kill him that puts him under this unnatural restraint." However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented

by death, unless the same, if committed, would also be punished by death.

In these instances of justifiable homicide, it may be observed that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error or omission; so trivial, however, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment. Excusable Homicide-Two Sorts,

II. Excusable homicide is of two sorts: either, per infortunium, by misadventure; or se defendendo, upon a principle of self-preservation. We will first see wherein these two species of homicide are distinct, and then wherein they agree.

Misadventure.

Homicide per unfortunium 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 qualified to keep a gun is shooting at a mark and undesignedly kills a man: for the act is lawful, and the effect is 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, and in some cases (according to the circumstances) murder; for the act of immoderate correction is unlawful.

But to proceed: A tilt or tournament, the martial diversion of our ancestors, was, however, an unlawful act: and so are boxing and sword-playing, the succeeding amusement of their posterity; and therefore if a knight in the former case, or a gladiator in the latter, be killed, such killing is felony or manslaughter. But if the king command or permit such diversion, it is said to be only misadventure; for then the act is lawful. Likewise to whip another's horse whereby he runs over a child and kills him, it 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 a stone in a town, or the barbarous diversion of cock-throwing, in these and similar cases the slayer is guilty of manslaughter, and not misadventure only, for these are unlawful acts.