Henry VIII, they were directed to avoid the realm and not return under pain of imprisonment, and forfeiture of their goods. 5. Nuisances. These are a species of offence against the public order and economical regimen of the state; being either the doing of a thing to the annoyance of all the king's subjects, or the neglecting to do a thing, which the common good requires. These are termed common nuisances, and are distinct from private nuisances, inasmuch as they annoy the whole community in general, and not merely some particular person, and therefore are indictable only and not actionable; for it would be unreasonable to multiply suits by giving every man a separate right of action, for what damnifies him in common only with the rest of his fellow subjects. Different Nuisances. (1) On Highways. Annoyances in highways, bridges and public rivers, by rendering the same inconvenient, or dangerous to pass, either positively, by actual obstructions, or negatively, by want of repairs. A house erected, or an enclosure made upon any part of the king's demesnes, or on a highway or public water, is called a purpresture. (2) Offensive Trades. All those 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. (3) Disorderly Houses. All disorderly inns or ale houses, bawdy houses, gaming houses, stage plays, unlicensed booths, and the like, which are public nuisances, and may, upon indictment, be suppressed and fined. Inns. Inns, in particular, being intended for the lodging and receipt of travellers, may be indicted and suppressed, and the inn-keepers fined, if they refuse to entertain a traveller without a very sufficient cause. Under the hospitable laws of Norway, the severest grade of punishment is inflicted on inn-keepers, who refuse to furnish accommodations at a just and reasonable price. (4) Lotteries. These are declared to be public nuisances, and all grants, patents or licenses for the same are contrary to law. (5) Fire-works. Selling fire-works, also the throwing of them in the street, by which danger may ensue to buildings. Also, the keeping or conveying too large a quantity of gunpowder at any one time, or in any one place or vehicle, is actionable. (6) Eavesdroppers. These are people who listen under walls or windows, or the eaves of a house, to conversation, from which they frame slanderous and mischievous tales. (7) Common Scolds. These are declared to be a public nuisance to the neighborhood, and the term communis rixatrix shows that they are confined to persons of the feminine gender; for which offence a woman may be indicted, and if convicted, shall be placed in the trebucket, or cucking stool, which term is frequently corrupted into ducking stool, and then be plunged in the water for punishment. 6. Idleness. This is a high offence against the public economy. In China, it is a maxim, that if a man does not work, or if a woman remains idle in the empire, somebody must suffer cold or hunger; the produce of the lands not being more than sufficient, with culture, to maintain the inhabitants. The court of Areopagus, at Athens, punished idleness, and exerted a right to examine every citizen as to how he spent his time. Civil law expelled all sturdy vagrants from the city. Our law divides these parties into three classes: idle and disorderly persons, rogues and vagabonds and incorrigible rogues. Persons harboring vagrants are liable to a fine of forty shillings, and to pay the expenses brought upon the parish thereby. 7. Luxury and Extravagance. Sumptuary laws against luxury, and extravagant expenses in dress, diet, and the like, have from time to time been passed. Montesquieu asserts, that luxury is necessary in monarchies, as in France, but ruinous as to democracies, as in Holland. In regard therefore to England, whose government is compounded of both species, it may therefore be a question, how far private luxury is a public evil, and as such cognizable by public laws. In the reign of Edward III, Edward IV and Henry the VIII, penal laws were passed against piked shoes, short doublets and long coats; all of which were repealed by statute of James I; but as to excessive diet there still remains one ancient statute unrepealed, passed under Edward III, which ordains, that no man shall be served at dinner with more than two courses, except upon some great holidays therein specified, in which he may be served with three. 8. Gambling. This is an offence of the most alarming nature, tending to promote public idleness, theft and debauchery among people of a lower class; while among persons of a super ior rank, it has frequently been attended with the sudden ruin and desolation of ancient and opulent families, and abandoned prostitution of every principle of honor and virtue, and too often has ended in suicide. To restrain this pernicious vice among the inferior sort of people, the statute of Henry VIII was made; which prohibits to all but gentlemen, the games of tennis, tables, cards, dice, bowls, and other unlawful diversions there specified, unless during Christmas times, under pecuniary pains and imprisonment. Tacitus asserts, that among the ancient Germans, the loser often went into voluntary slavery and suffered himself to be bound and sold; terming this perseverance in so bad a cause a point of honor. One would almost be tempted to think Tacitus was describing a modern Englishman. By several statutes during the reign of George II, all private lotteries by cards, tickets and dice, and particularly the games of faro, basset, ace of hearts, hazard, passage, rolly polly, and all other games with dice, except backgammon, are prohibited under a heavy penalty. Public lotteries, unless by authority of parliament, and all manner of ingenious devices were also prohibited; but the inventions of sharpers are swifter than the punishment of the law, which only hunts them from one device to another. Another statute of the same reign, prevents the multiplicity of horse racing, another form of gaming. 9. Violation of Game Laws. This is an offence, which the sportsmen of England seem to think of the highest importance, and associations have been formed all over the kingdom to punish its commission. It is the offence of destroying such beasts and fowls, as are ranked under the denomination of game; the laws being termed game laws. Statutes Relating Thereto. Statutes for preserving the game are many and various, but mostly obscure and intricate. Exemptions from the penalties inflicted by the statute law are: (1) To those having a freehold estate of 1007. per annum; there being fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire. (2) To one having a leasehold for 99 years of 150l. per annum. (3) Being the son and heir apparent of an esquire, (a very loose and vague description), or person of superior degree. (4) Being the owner or keeper of a forest, park, chase or warren. No person, however, qualified to kill, may make merchandise of this valuable privilege, by selling or exposing for sale any game. CHAPTER XIV.-HOMICIDE. PREAMBLE. Summary. Having considered crimes against God and religion, also offences against the law of nations, thirdly, those which affect the king, and fourthly, such as more directly infringe the rights of the public in its collective capacity, we now lastly consider crimes, which in a more peculiar manner affect individuals. Injuries to the Public also. If these injuries were confined to individuals, they would come under the head of private wrongs, for which a satisfaction would be due only to the party injured; but they are of a much more extended import, because their commission involves a violation of the laws of nature; because they almost always include a breach of the peace; and because by their example and evil tendency they endanger all civil society. Hence, in addition to the satisfaction due in many cases to the individual by action for the private wrong, the offender is liable to public punishment for the crime. The Punishment. The prosecution for such offences is always in the king's name, in whom the executory power of the law resides. Under the old Gothic constitutions, there was a three-fold punishment inflicted on all offenders: first, for the private wrong done the party injured; second, for the offence against the king, by disobeying his laws; and thirdly, for the crime against the public by their evil example. Three Kinds of such Crimes. These crimes against private subjects are of three kinds: against their persons, their habitations, and their property. Of offences against the person, the offence of destroying the life of a human being is the most serious. HOMICIDE. Kinds. Homicide is of three kinds: justifiable, excusable and felonious. The first has no share of guilt at all; the second very little, while the third is the greatest of crimes. I. JUSTIFIABLE HOMICIDE. 1. The Result of Necessity. In such homicide, there exists no will, intent or desire, nor even negligence in the slayer, who acts blamelessly. Such is the act of an executioner, who thereby fulfils the requirement of the law. If any unauthorized party perform such act, he is guilty of murder; as also would be the case of the judge, who without lawful commission, sentences the criminal, who loses his life thereby. Permissive Homicide. Again, in some cases homicide is justifiable, rather by the permissive, than by the absolute command of the law, either for the advancement of public justice, or where committed for the prevention of some atrocious crime. 2. In the Advancement of Public Justice. This occurs: (1.) Where an officer in the execution of his office, in a civil suit or criminal case, kills a person, who assaults and resists him. (2.) Where an officer, or a private person, attempts to take a man charged with felony and is resisted; and in the endeavor kills him. (3.) In case of a riot or rebellious assembly, the officers, dispersing a mob, may resort to extreme measures, even though death be the result. (4.) Where prisoners assault a jailer, and in self defence he slays an assailant, he is justified in so doing, to prevent an escape. (5.) If trespassers in forests or parks will not surrender themselves to the keepers, they may be slain. In all these cases, there must exist an apparent necessity on the officer's side; that the party could not be arrested, the riot could not be suppressed, or the prisoners could not be retained; otherwise such homicide would be unjustifiable. (6.) If a champion in a wager of battle lost his life, it was imputed to be the judgment of God.1 Crime. 3. For the Prevention of any Atrocious Homicide in such case is justifiable, both by the law of nature and by the statute law. Thus if a person attempts to rob or murder another, or to break open a house in the night time, or to burn it, and shall be killed in such attempt, the slayer shall be acquitted. The crime must be accompanied with force. The Jewish law, which punished no theft with death, made homicide only justifiable in the case of nocturnal house-breaking. Athens it was lawful to kill such criminal, if taken in the act, as was also the case in Rome. In In Defence of Chastity. The Roman law, and likewise that of the Jewish republic, justified homicide in defence of the chastity either of one's self or relations. The English law justi 1 No longer the law, as such contests are forbidden. |