IV. Idleness and vagrancy are justly deemed to be offences against the public order and economy, and are in some cases punishable. Under the statute IV. Idleness and 5 Geo. 4, c. 83 (amended by the 1 & 2 Vict. c. 38, and by 31 & 32 Vict. c. 52, and 32 & 33 Vict. c. 99, s. 9), such offenders are (s. 3) thus classified:

vagrancy.

1. An idle and disorderly person is: (1) Any person being able wholly or in part to maintain himself or his family by any means, who refuses or neglects so to do, whereby he or his family, whom he may be bound to maintain, becomes chargeable to the parish. (2) Any person returning to * and becoming chargeable in any parish, from whence he shall have been [* 205] removed by order of two justices of the peace, unless he produce a certificate of settlement in such other parish, &c. (3) Petty chapmen or pedlars wandering abroad and trading, without being duly licensed or otherwise authorised by law. (4) Common prostitutes, wandering in the public streets or public highways, or in any public place of resort, and behaving in a riotous or indecent manner (u). (5) Persons wandering abroad, or placing themselves in any public place, street, highway, court, or passage, to beg or gather alms, or causing, or procuring, or encouraging any child so to do.

These offenders are by the above act punishable by a single justice, with one month's imprisonment and hard labour.

2. Rogues and vagabonds are, by sect. 4: (1) Persons committing any of the offences before mentioned, after having been convicted as idle and disorderly persons. (2) Persons pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of her Majesty's subjects. (3) Persons wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any (u) See per Bramwell, B. Reg. v. Howell, 4 F. & F. 164.

State v. Stevens, 40 Me. 559. A house may be disorderly, although the disorder extends to but one room (State v. Gentry, 46 N. H. 61); or, instead of being within the house, is carried on outside and around it. State v. Webb, 25 Iowa, 235; see State v. Matthews, 2 Dev. & Bat. (N. C.) 424. And to be indictable as disorderly, the house need not be kept for lucre. State v. Williams, 1 Vroom (N. J.), 102; State v. Bailey, 1 Fost. (N. H.) 343.

A mere tippling-house is not per se a nuisance at common law. Com. v. McDonough, 13 Allen (Mass.), 581. But if one keeps a house or shop for promiscuous and noisy tippling, thereby promoting drunkenness in a community, he may be indicted (Smith v. Com., 6 B. Monr. [Ky.] 21; State v. Bertheol, 6 Black f. [Ind.] 474; Wilson v. Com., 12 B. Monr. [Ky.] 2; State v. Burchinal, 4 Harr. [Del.] 572; U. S. v. Columbus, 5 Cranch's C. C. 304; U. S. v. Benner, id. 347); and such a house is not protected by a license to sell liquors therein. United States v. Elder, 4 Cranch's C. C. 507; State v. Mullikin, 8 Black f. (Ind.) 260; State v. Buckley, 5 Harr. (Del.) 508. So, a house of ill-fame, or bawdy house where promiscuous, illicit, sexual intercourse is encouraged, is an indictable nuisance at common law. State v. Evans, 5 Ired. (N. C.) 603; see Com. v. Lewis, 1 Metc. (Mass.) 151; State v. Bentz, 11 Mo. 27; Com. v. Wood, 97 Mass. 225.

It is not an indictable offense to merely permit a single act of gaming in one's house. Estes v. State, 2 Humph. (Tenn.) 496. But common gaming houses, like other disorderly houses, may be treated as public nuisances, at the common law. State v. Layman, 5 Harring. (Del.) 510; People v. Jackson, 3 Denio, 101; State v. Haines, 30 Me. 65; Vanderworker v. State, 8 Eng. (Ark.) 700; State v. Doon, R. M. Charlt. (Ga.) 1; Lord v. State, 16 N. H. 325; Com. v. Stahl, 7 Allen (Mass.), 304; see Armstrong v. State, 4 Blackf. (Ind.) 247; Rice v. State, 10 Texas, 545; Lockhart v. The State, id. 275; Barada v. The State, 13 Mo. 94.

*

visible means of subsistence, and not giving a good account of themselves. (4) Persons wilfully exposing to view in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition (x). (5) Persons wilfully, openly, lewdly, and obscenely exposing their persons in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female (y). (6) Persons wandering abroad [* 206] and endeavouring, by exposure of wounds or deformities, to obtain alms (z). (7) Persons going about as collectors of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence. (8) Persons running away and leaving their wives or children chargeable, or whereby they shall become chargeable to the parish. (9) Persons playing or betting in any street, highway, or other open and public place, at or with any table or instrument of gaming, at any game or pretended game of chance. (10) Persons having in their custody any picklock key, or other implement, with intent feloniously to break into any dwelling-house, warehouse, or out-building, or being armed with any gun, or offensive weapon, or having upon them any instrument, with intent to commit any felonious act (a). (11) Persons being found in or upon any dwelling-house, warehouse, or out-house, or in any enclosed yard, garden, or area, for any unlawful purpose (b). (12) Suspected persons, or reputed thieves, frequenting any river, canal, or navigable stream, dock, quay, wharf, or warehouse, near or adjoining thereto, or any street or highway leading thereto, or any place of public resort, or any street, highway, or place adjacent, with intent to commit felony. (13) And every person apprehended as an idle and disorderly person,

[* 207] and violently resisting any constable or other peace officer so apprehending him, and being subsequently convicted of the offence for which he shall have been so apprehended.

Such offenders are, by the same act, punishable by a single magistrate, with three calendar months' imprisonment and hard labour.

3. Incorrigible rogues are, by sect. 5: (1) Persons breaking or escaping out of any place of legal confinement before the expiration of the term for which they have been committed, or ordered to be confined by virtue of the act. (2) Persons committing any offence against the act which shall subject them to be dealt with as rogues and vagabonds, such persons having been at some former time adjudged so to be and duly convicted thereof. (3) And every person apprehended as a rogue and vagabond, and violently resisting any constable or other peace officer so apprehending him, and being subsequently convicted of the offence for which he shall have been so apprehended.

Such offenders are to be committed to the next sessions, and kept to hard

(a) The exposing of obscene prints in a shop window is declared to be within this clause by the stat. 1 & 2 Vict. c. 38, s. 2. Ante, p. 202.

(y) A public exposure of the person is indictable. See Reg. v. Thallman, L. & C. 326; Reg. v. Webb, 1 Den. 338.

(z) See 1 & 2 Vict. c. 38.

(a) See 24 & 25 Vict. c. 96, ss. 58, 59.

(b) Under the Larceny Act (24 & 25 Vict. c. 96, s. 104)," any constable or peace officer may take into custody, without warrant, any person whom he shall find lying or loitering, in any highway, yard, or other place, during

the night, and whom he shall have good cause to suspect of having committed, or being about to commit, any felony against the act, and shall take such person, as soon as reasonably may be, before a justice of the peace, to be dealt with according to law."

The stat. 24 & 25 Vict. c. 97 (concerning malicious injuries to property) contains a like provision (s. 57); and the 24 & 25 Vict. c. 100 (concerning offences against the person) simi. larly provides (s. 66), in respect of persons suspected "of having committed, or being about to commit, any felony" in that act mentioned.

labour in the interim; and the sessions may further punish them by imprisonment with hard labour for one year, together with whipping, if not females (c). (689)

V. Lastly, the refusal, without lawful excuse, to * execute a public [* 208] office, as that of constable or overseer of the poor, is indictable at common law (d), and seems properly referable to the class of offences execute a pub- under our notice, being in contravention of public order and economy. (690)

V. Refusal to lic office.

*CHAPTER XIII.

OFFENCES AGAINST THE PERSON.

[* 209]

IN the eight preceding chapters we have considered, first, such crimes as are more immediately injurious to God, and religion; secondly, such as violate or transgress the law of nations; thirdly, such as more especially affect the sovereign; fourthly, such as more directly infringe the rights of the public or commonwealth, taken in its collective capacity; we are now, lastly, to take into consideration those crimes which in a more peculiar manner affect and injure individuals or private subjects.

Were these injuries, indeed, confined to individuals, they would fall under the notion of private wrongs; for which a satisfaction would be due only to the party injured. But the wrongs which we are now to treat of affect the entire community. 1. Because they cannot in general 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, or else the ingredient of malice, or of fraud affecting the public. 3. Because by their example and evil tendency they threaten and endanger the subversion of all civil society. Upon these accounts it is, that besides any private satis

(c) By the 6th section of the act, any per son may apprehend offenders against it; and a penalty is enforced on constables neglecting their duty; see also sect. 11. By the 7th section, justices may issue their warrants to apprehend suspected offenders. By the 8th section, all vagrants are to be searched, and their trunks and bundles, &c., to be inspected; and by sect. 13, lodging-houses, &c., suspected

to conceal vagrants may be searched, and suspected persons brought before a justice. By the 9th section, justices may bind persons by recognizance to prosecute vagrants at sessions, and a power is given to sessions to order payment of expenses to prosecutors and witnesses, &c.; and see sect. 21.

(d) R. v. Adlard, 4 B. & C. 772; R. v. Mosley, 3 Ad. & E. 488; R. v. Fearnley, 1 T. R. 316.

(689) Statutes, similar to the English statute cited in the text, and providing for the punishment of the same class of offenders, have been adopted in the United States, and have frequently been held constitutional. See People v. Gray, 4 Park. 616; People v. Forbes, id. 411; People v. Phillips, 1 id. 95; State v. Maxcy, 1 McMull. (S. C.) 501.

(690) See State v. McIntyre, 3 Ired. (N. C.) 171; State v. Lisbon, 9 Humph. (Tenn.) 603 ; Com. v. Silsbee, 9 Mass. 417; State v. Hoit, 3 Fost. (N. H.) 355. The refusal to accept an office is a crime which an inhabitant of the United States was never known to commit. See 2 Bish. Crim. Proc., § 820.

faction due and given to the individual injured by action for the private wrong, the government also calls upon the offender to submit to punishment for the public crime. And the prosecution of these offences is at the suit and in the name of the sovereign, in whom, by the texture of our constitution, *the executory power of the law entirely resides. Thus, too, in the [* 210] old Gothic constitution, there was a threefold punishment inflicted on a delinquent: 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 his evil example (a). Of which we may trace the groundwork, in what Tacitus tells us of his Germans (b); that, whenever offenders were fined, "pars mulctæ regi, vel civitati, pars ipsi qui vindicatur vel propinquis ejus, exsolvitur."

Offences against private subjects are principally of two kinds (c); first, against their persons; secondly, against their property.

I. Of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away life, which is the immediate gift

First, Crimes against the person.

1. Homicide:

of the 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 of either nature or revelation. The subject, therefore, in the present chapter first to be considered will be the offence of homicide, or destroying the life of man, the particular circumstances of mitigation or aggravation which attend it, and the punishment of this offence.

Homicide, or the killing of any human creature, is by our customary law, 1. justifiable; 2. excusable; or, 3. felonious; and although, as presently stated, the last-mentioned only of these three species of homicide is now indictable and punishable, a few remarks as to each of the two former, may with a view to rendering intelligible the nature of felonious homicide be proper. 1. Justifiable homicide is of divers kinds.

[* 211 ]

I. Justifiable.

* (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. (1.) of necessity 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 extrajudicially, is murder (d). For, as Bracton (e), very justly observes, "istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet juste occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam." 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 mur

(a) Stiernhook, 1. 1, c. 5.

(b) De Mor. Germ. c. 12.

(c) As to the offence of libel directed

against the reputation of an individual, ante, p. 173.

(d) 1 Hale, P. C. 497.
(e) Fol. 120.

It

der (f). And upon this account Sir Matthew Hale, though he accepted the place of a judge of the Common Pleas under Cromwell's government, yet declined to sit on the crown side at the assizes, and try prisoners; having strong objections to the legality of the Protector's commission (g); a distinction, perhaps, rather too refined; since the punishment of crimes is at least as neces sary to society, as maintaining the boundaries of property. 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 does it of his own head, it is held to be murder (h); even though it be the judge himself (i). *must further be executed, servato juris ordine; it must pursue the [* 212] sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versa, it is murder (k): for the officer 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. (691) (2.) 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 advancement of carried on with proper vigour: or, where it is committed for the prevention of some atrocious crime, which cannot otherwise be

(2.) Homicide for

justice.

avoided.

Homicide committed for the advancement of public justice, is, where an officer, in the execution of his office, either in a civil or criminal case, kills a person who assaults and resists him (1); or where 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). This is similar to the old Gothic constitutions, which (Stiernhook informs us (n)) "furem, si aliter capi non posset, occidere permittunt." In case of a riot, or rebellious assembling, the officers endeavouring to disperse the mob are justifiable in killing them, both at common law (0), and by the Riot Act, 1 Geo. 1, c. 5 (p). 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 (2). But, in all these cases, there must be an apparent necessity on the officer's side; viz. that the person could not be [* 213]

arrested or apprehended, the riot could not be suppressed, the prisoners could not be kept in hold, unless such homicide were committed: otherwise, without such absolute necessity, it is not justifiable. (692)

(f)1 Hawk. P. C. 70; 1 Hale, P. C. 497. (g) Burnet in his Life.

(h) 1 Hale, P. C. 501; 1 Hawk. P. C. 70. (i) Dalt. Just. c. 150.

(k) Finch, L. 31; 3 Inst. 52; 1 Hale, P. C. 501.

() 1 Hale, P. C. 494; 1 Hawk. P. C. 71. (m) 1 Hale, P. C. 494.

(n) De Jure Goth. 1. 3, c. 5.

(0) 1 Hale, P. C. 495; 1 Hawk. P. C. 161. (p) Ante, p. 164.

(9) 1 Hale, P. C. 496.

(691) The malicious killing of an alien enemy, not in the exercise of war, is murder. State v. Gut, 13 Minn. 341.

(692) Where no process has been issued, a homicide can only be justified, even by an officer, by showing the actual commission of a felony, and that there was a positive necessity to take life in order to arrest or detain the felon. Conraddy v. The People, 5 Park. 234.