The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER IV.

Of Crimes Against the Right of Individuals to Personal Safety.

The crimes which are next to be enumerated and considered are those against the right of personal safety. On this subject, the common law has been peculiarly accurate and attentive.

An assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at him; by holding up the fist at him; by pointing a pitchfork at him, if he be within its reach; by presenting a gun at him, if he be within the distance to which it will carry; or by any other act of a similar kind, done in an angry and threatening manner.a An assault is violence inchoate.b

A battery is violence completed by beating another. Any injury done to the person of a man, in an angry, or revengeful, or rude, or insolent manner, as by touching him in any manner, or by spitting in his face, is a battery in the eye of the law.c In that eye, the person of every man is sacred: between the different degrees of violence it is impossible to draw a line: with great propriety, therefore, its very first degree is prohibited.d

Wounding is a dangerous hurt given to another; and is an aggravated species of battery.e

These offences may unquestionably be considered as private injuries, for which compensation ought to be decreed to those who suffer them. But viewed in a publick light, they are breaches of the publick peace: as such they may be prosecuted; and as such they may be punished. The punishment is fine, or fine and imprisonment.f

A battery or an assault, violence or an offer of violence, is susceptible of deep criminality from the atrocious intention, with which it is sometimes offered or done. An assault with a design to murder, to perpetrate the last outrage upon the honour of the fair sex, or to commit the crime which ought not to be even named—these are instances of what I mention: in these instances, to a heavy fine and imprisonment, it is usual to add the judgment of the pillory.g

Assaults, batteries, and woundings may be sometimes excused, and sometimes justified. The particular cases in which this may be done, will be explained with more propriety, when we come to consider them as private injuries, and not as publick offences.

Affrays are crimes against the personal safety of the citizens; for in their personal safety, their personal security and peace are undoubtedly comprehended. An affray is a fighting of persons in a publick place, to the terrour of the citizens. They are considered as common nuisances. They may, and ought to be suppressed by every person present; and the law, as it gives authority, so it gives protection, to those who obey its authority in suppressing them, and in apprehending such as are engaged in them; if by every person present; then still more strongly by the officers of peace and justice.h In some cases, there may be an affray, where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.i

To challenge another, by word or letter, to fight a duel, or to be the messenger of such a challenge, or to provoke, or even to endeavour to provoke, another to send such a challenge, is a crime of a very high nature, and is severely reprehended by the law:j duels are direct and insolent contempts of the justice of the state.k

Affrays are punished by fine and imprisonment, the measure of which must be regulated by the circumstances of the case.1 For sending a challenge, the offenders have been adjudged to pay a fine, to be imprisoned, to make a publick acknowledgment of their offence, and to be bound to their good behaviour.

It cannot have escaped your observation, with what a judicious mixture of poignant contempt the common law seasons its indignation against those, who are so lost to true sentiment as to deem it honourable to insult the justice of their country. They are not treated as criminals of dignity: they are considered in the very degraded view of common nuisances: the putrid offals of the shambles are viewed, as we shall see, in the same light.

Neither can it have escaped your observation, with what a deep knowledge of human nature, the common law traces and pursues duels to what is frequently their cowardly as well as their cruel source. Many are vain and base enough to wish and aspire at that importance, which, in their perverted notions, arises from being even the second in a quarrel of this nature, who have not spirit enough to face that danger, which arises from being the first. Hence often the officious and the insidious offers of friendship, as it is called, on these occasions, by those who, with hearts pusillanimous and malignant, inflame, instead of endeavouring, as those possessed of bravery and humanity would endeavour, to extinguish an unhappy dispute—a dispute, perhaps, unpremeditated as well as unhappy—regretted as well as unintended by the immediate parties—and to rescue them from the consequences of which, without any violation of the rules of true honour, and even without any departure from the rules of false honour, which every one has not the calm courage to violate, nothing is wanting but a conduct diametrically opposite to that of these pretended friends—a conduct which will prevent extremities, without wounding a sentiment which, without necessity, ought not to be wounded, because it is delicate though it be mistaken.

Animated with a just degree of blended resentment and disdain against the conduct first described, the common law wisely and humanely extends disgrace and censure and punishment to those who provoke, even to those who endeavour to provoke, another to send a challenge.

On the same principles on which affrays are prohibited and punished, riots, routs, and unlawful assemblies are also prohibited and punished by the common law. Two persons may commit an affray; but to a riot, a rout, or an unlawful assembly, three are necessary. A riot is a tumultuous disturbance of the peace by persons unlawfully assembled with a view to execute, and actually executing, some unlawful act, in a violent and turbulent manner, to the terrour of the people.m A rout is a riot unfinished; and is committed by persons unlawfully assembled with a view to execute, and actually making a motion to execute, an unlawful act, the execution of which would render the riot complete. An unlawful assembly is an unfinished rout; and is committed by persons unlawfully assembled with a view, but without actually making a motion, to execute an unlawful act, to the execution of which, if they had made an actual motion, they would have been guilty of a rout.n The punishment of these offences, at the common law, has generally been by fine and imprisonment only: cases, however, very enormous have been punished by the pillory also.o

Mayhem is a crime committed by violently depriving one of the use of any part of his body, by losing the use of which he becomes less able, in fighting, to annoy his adversary or to defend himself.p This is an atrocious breach of the publick peace and security. By it, one of the citizens is disabled from defending himself; by it, his fellow citizens are debarred from receiving that social aid which they are obliged to give; by it, the state loses those services, which it had a right to exact and expect. In ancient times, this crime was punished according to the law of retaliation: it is now punished with fine and imprisonment.q

The forcible abduction or stealing of a person from his country, is a gross violation of the right of personal safety. To this crime the term kidnapping is appropriated by the law. It robs the state of a citizen; it banishes the citizen from his country; and it may be productive of mischiefs of the most lasting and humiliating kind. By the common law, it is punished with fine, with imprisonment, and with the pillory.r

A rape is an irreparable and a most atrocious aggression on the right of personal safety. Besides the thousand excruciating, but nameless circumstances by which it is aggravated, some may be mentioned with propriety. It is a crime committed not only against the citizen, but against the woman; not only against the common rights of society, but against the peculiar rights of the sex: it is committed by one from whom, on every virtuous and manly principle, her sex is entitled to inviolable protection, and her honour to the most sacred regard. This crime is one of the selected few, which, by the laws of the Saxons, were punished with death. The same punishments it still undergoes in the commonwealth of Pennsylvania.t On this subject, for an obvious reason, particular observations will not be expected from a lecture in the hall: they are fit for the book and the closet only: for even the book and the closet they are fit, only because they are necessary.

The crime not to be named, I pass in a total silence.

I now proceed to consider homicide, and all its different species. Homicide is the generical term used by the law to denote every human act, by which a man is deprived of his life. It may be arranged under the following divisions—enjoined homicide—justifiable homicide—homicide by misfortune—excusable homicide—alleviated homicide—malicious homicide—treasonable homicide.

I. 1. Homicide is enjoined, when it is necessary for the defence of the United States, or of Pennsylvania. At present, it is not necessary for me, and, therefore, I decline to examine the general and very important subject concerning the rights of war. I confine myself merely to that kind of war, which is defensive: and even that kind I now consider solely as a municipal regulation, established by the constitution of the nation, and that of this commonwealth.

The constitution of the nation is ordained to “provide for the common defence.” In order to make “provision” for that defence, congress have the power to “provide for arming the militia,” and “for calling them forth,” “to repel invasions:” they have power “to provide a navy,” “to raise and support armies,” “to declare war.”u Whenever the primary object, “the common defence,” renders it necessary, the power becomes the duty of congress: and it requires no formal deduction of logick to point to the duty, when necessity shall require, of military bodies, “raised, supported, and armed.” In Pennsylvania, it is explicitly declared upon the very point, that “the freemen of this commonwealth shall be armed for its defence.”v

2. Homicide is enjoined, when it is necessary for the defence of one’s person or house.

With regard to the first, it is the great natural law of self preservation, which, as we have seen,w cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania.x “The right of the citizens to bear arms in the defence of themselves shall not be questioned.” This is one of our many renewals of the Saxon regulations. “They were bound,” says Mr. Selden, “to keep arms for the preservation of the kingdom, and of their own persons.”y

With regard to the second; every man’s house is deemed, by the law, to be his castle; and the law, while it invests him with the power, enjoins on him the duty, of the commanding officer. “Every man’s house is his castle,” says my Lord Coke, in one of his reports, “and he ought to keep and defend it at his peril; and if any one be robbed in it, it shall be esteemed his own default and negligence.”z For this reason, one may assemble people together in order to protect and defend his house.a

3. Homicide is frequently enjoined by the judgment of courts agreeably to the directions of the law. This is the case in all capital punishments. This species of homicide is usually classed with those kinds which are justifiable. The epithet is true so far as it goes. But it goes not far enough to characterize the conduct of the officer to whom it relates. One may be justifiable in doing a thing, in omitting to do which he may be equally justified. But this is not the case with a sheriff, or other ministerial officer of justice. He is commanded to do execution.

II. As homicide is enjoined, when a sentence of death is to be executed; so it is sometimes justified in the execution of other process from the courts of justice. When persons, who have authority to arrest, and who use the proper means for that purpose, are resisted in doing so, and the party making resistance is killed in the struggle; this homicide is justifiable.b If a person, who interposes to part the combatants in an affray, and gives notice to them of his friendly intention, is assaulted by any of them, and, in the struggle, happens to kill; this is justifiable homicide. For, in such cases, it is the duty of every man to interpose, that mischief may be prevented, and the peace may be preserved. This rule is founded in the principles of social duty.c If a woman, in defence of her honour, kill him who attempts the last outrage against it; this homicide is justifiable.d In the same manner, the husband or father may justify the killing of one, who makes a similar attempt upon his daughter or wife.e In these instances of justifiable homicide, the person who has done it is to be acquitted and discharged, with commendation rather than censure.f

III. Homicide by misfortune happens, when a man, in the execution of a lawful act, and without intending any harm, unfortunately kills another.g The act must not only be lawful, but must also be done in a lawful manner. If a master, correcting his servant moderately, happens to occasion his death, it is only misadventure; for the act of correction was lawful: but it is much otherwise, if he exceed in the manner, the instrument, or the quantity of the correction.h

This species of homicide, if found by a jury, still, in strict law, as it is received in England, subjects the unfortunate—I cannot call him the guilty—party, to a forfeiture of his personal estate; or, as some say, only a part of it. He has, it is true, his pardon, and a writ for restoring his goods, as a matter of course, when he pays the fees for them.i Sir William Blackstone seems to make an apology for this forfeiture, by observing, that, in the case of homicide by misadventure, the law presumes negligence, or, at least, a want of sufficient caution, in him who was so unfortunate as to commit it; who, therefore, is not altogether faultless.j The law itself is severe in this instance—confessedly so: but the apology for it seems to be founded on a principle, rigorous and totally inadmissible.

Shall the unfortunate be necessarily viewed as also incautious? Shall negligence be presumed by the law, when misadventure has been found by the jury? No. The doctrine is inadmissible. It is rigorous. Accidents of this lamentable kind may be the lot of the wisest and most cautious, and of the best and most humane among men: they most frequently happen among those who are relations or friends; because those associate most frquently together. In such cases, to ascribe the calamity to a conduct “not altogether faultless;” to “presume negligence,” when nothing existed but bitter misfortune, would, indeed, be to “heap affliction upon the head of the afflicted,” and to stab afresh a heart still bleeding with its former wound. It would be to aggravate the loss of even a brother, a parent, a child, a wife; if of aggravation such a loss, in such circumstances, is susceptible.k

The law itself, in this instance, is, as has been mentioned, severe—confessedly so. The fees of office have probably, in this as in too many other instances, prevented improvement. “I therefore think,” to use the expressions of a great master of criminal law, “those judges, who have taken general verdicts of acquittal in plain cases of homicide by misfortune, have not been to blame. They have, to say the worst, deviated from ancient practice in favour of innocence, and have prevented an expense of time and money, with which an application to the great seal, though in a matter of course, as this undoubtedly is, must be constantly attended.”l It is proper to observe that this late practice of the judges is mentioned by Sir William Blackstone, in terms which intimate his approbation.m

IV. Excusable homicide is that which, on a sudden affrayn between parties, is given in the necessary defence of him who wishes and endeavours to quit the combat. This is carefully to be distinguished, because it is materially different, from that kind of self defence which is justified or enjoined to prevent the perpetration of the most atrocious outrage upon one’s person or habitation.o

The species of homicide, which we are now to consider, though excusable by the benignity of the law, is still culpable. It is done, when a person, engaged in a sudden affray, quits the combat before a mortal wound is given, and retreats or flies as far as he can with safety; and then, urged by mere necessity, kills his adversary for the preservation of his own life.p This species approaches near to manslaughter; and, in experience, the boundary between them is, in some places, difficult to be discerned: it is marked, however, in the consideration of law. In both species, it is supposed that passion has kindled on each side; and that blows have passed between the parties. But in the case of manslaughter, either the combat on both sides continues till the mortal stroke is given, or the party giving it is not in imminent danger: whereas, in the case of excusable homicide, he who is excused declines, before a mortal stroke given, any further combat, and retreats as far as he can with safety; and then, through mere necessity, and to avoid immediate death, kills his adversary.q

Though this species of homicide is very different from that which happens by misfortune; yet the judges, in one as well as the other, permit, if not direct, a general verdict of acquittal.r

V. To alleviated homicide, the term manslaughter is appropriated. When the epithet alleviated is applied to this species of homicide, it must be understood only as compared with that which is malicious; for manslaughter, though in this view an alleviated, is a felonious homicide. It is the unlawful killing of another, without malice; and may be either voluntarily, upon a sudden heat or provocation; or involuntarily, but in the commission of some unlawful act. When manslaughter is voluntary, it is distinguished from excusable homicide by this criterion—that, in the latter case, the killing is through necessity, and to avoid immediate death; whereas, in the former, there is no necessity at all; it being a sudden act of revenge. When manslaughter is involuntary, it is distinguished from homicide by misfortune by this criterion—that the latter always happens in consequence of a lawful, the former, in consequence of an unlawful act. Manslaughter, both voluntary and involuntary, is distinguished from malicious homicide by this criterion—that the latter is with, the former without, malice.

In England, manslaughter is punished by burning in the hand, and by the forfeiture of goods and chattels.s In the United States, it is punished by a fine not exceeding one thousand dollars, and by imprisonment not exceeding three years.t In Pennsylvania,u it is punished by a fine at the discretion of the court, and by imprisonment not exceeding two years; and the offender shall find security for his good behaviour during life.v

VI. To malicious homicide the term murder is appropriated by the law. This name was, in ancient times, applied only to the secret killing of another; for which the vill or hundred where it was committed was heavily amerced. This amercement was called murdrum. This expression is now applied to the crime; and the crime is now considered in a very different, and much more extensive point of view, without regarding whether the person killed was killed openly or secretly.w

Murder is the unlawful killing of another with malice aforethought, express or implied.x The distinction, you observe, which is strongly marked between manslaughter and murder is, that the former is committed without, the latter with malice aforethought. It is essential, therefore, to know, clearly and accurately, the true and legal import of this characteristick distinction.

There is a very great difference between that sense which is conveyed by the expression malice in common language, and that to which the term is appropriated by the law. In common language, it is most frequently used to denote a sentiment or passion of strong malevolence to a particular person; or a settled anger and desire of revenge in one person against another. In law, it means the dictate of a wicked and malignant heart; of a depraved, perverse, and incorrigible disposition. Agreeably to this last meaning, many of the cases, which are arranged under the head of implied malice, will be found to turn upon this single point, that the fact has been attended with such circumstances—particularly the circumstances of deliberation and cruelty concurring—as betray the plain indications and genuine symptoms of a mind grievously depraved, and acting from motives highly criminal; of a heart regardless of social duty, and deliberately bent upon mischief. This is the true notion of malice, in the legal sense of the word. The mischievous and vindictive spirit denoted by it, must always be collected and inferred from the circumstances of the transaction. On the circumstances of the transaction, the closest attention should, for this reason, be bestowed. Every circumstance may weigh something in the scale of justice.

In England, in the United States, in Pennsylvania, and almost universally throughout the world, the crime of wilful and premeditated murder is and has been punished with death. Indeed it seems agreed by all, that, if a capital punishment ought to be inflicted for any crimes, this is unquestionably a crime for which it ought to be inflicted. Those who think that a capital punishment is enjoined against this crime by the law which is divine, will not imitate the conduct of that Polish monarch, who remitted to the nobility the penalties of murder, in a charter of pardon beginning arrogantly thusy —“Nos divini juris rigorem moderantes, &c.”z1

VII. Treasonable homicide is committed by a servant who kills his master, and a wife, who kills her husband. Petit treason is the name appropriated, by the law, to this crime. It arises from the relation which subsists between the person killing and the person killed. The crime which, committed by another, would be murder, is petit treason when committed by the wife, or by a servant.

The punishment of this crime, in England, is, that the man is drawn and hanged; and the woman is drawn and burned.a By a lawb still in force in Pennsylvania, persons convicted of this crime, or of murder, shall suffer as the laws of Great Britain now do or hereafter shall direct and require in such cases respectively.c

[a. ]1. Haw. 133.

[b. ]3. Bl. Com. 120.

[c. ]1. Haw. 134.

[d. ]3. Bl. Com. 120.

[e. ]Id. 121.

[f. ]1. Haw. 134. 4. Bl. Com. 217.

[g. ]4. Bl. Com. 217.

[h. ]3. Ins. 158. 4. Bl. Com. 145.

[i. ]1. Haw. 135.

[j. ]3. Ins. 158. 1. Haw. 135.

[k. ]1. Haw. 138.

[1. ]Id. ibid.

[m. ]1. Haw. 155. Salk. 594. 3. Ins. 176.

[n. ]1. Haw. 158.

[o. ]Id. 159.

[p. ]1. Haw. 111.

[q. ]4. Bl. Com. 206.

[r. ]Id. 219.

[s. ]1. Laws Penn. 135.

[t. ]By the act of assembly of 22d. April 1794, the punishment of this crime is changed into imprisonment at hard labour, for a period not less than ten, nor more than twenty one years. 3. Laws Penn. 600. Ed.

[u. ]Cons. U.S. art. 1. s. 8.

[v. ]Cons. Penn. art. 6. s. 2.

[w. ]Ante. vol. 2. p. 1083.

[x. ]Art. 9. s. 21.

[y. ]Bac. on Gov. 40.

[z. ]7. Rep. 6.

[a. ]1. Hale. P. C. 547. 4. Bl. Com. 223.

[b. ]Eden. 209. Fost. 270. 1. Hale. P. C. 494.

[c. ]Fost. 272. Eden. 209.

[d. ]Fost. 274. Eden. 210.

[e. ]4. Bl. Com. 181.

[f. ]Id. 182. Fost. 279.

[g. ]Fost. 258.

[h. ]4. Bl. Com. 182. Fost. 262.

[i. ]4. Bl. Com. 188.

[j. ]Id. 186.

[k. ]Fost. 264.

[l. ]Fost. 288.

[m. ]4. Bl. Com. 188.

[n. ]Fost. 276.

[o. ]4. Bl. Com. 183.

[p. ]Fost. 275.

[q. ]Fost. 275. 277. 4. Bl. Com. 185.

[r. ]4. Bl. Com. 188.

[s. ]4. Bl. Com. 193.

[t. ]Laws U. S. 1. cong. 2. sess. c. 9. s. 7.

[u. ]1. Laws. Penn. 846.

[v. ]The punishment of voluntary manslaughter, by the act of 22d April, 1794, (3. Laws. Penn. 601. s. 7.) is, for the first offence, imprisonment at hard labour, not less than two, nor more than ten years; and the offender shall be sentenced likewise to give security for his good behaviour during life, or for any less time, according to the nature and enormity of the offence. For the second offence, he shall be imprisoned as aforesaid not less than six, nor more than fourteen years. In cases of involuntary manslaughter, the prosecutor for the commonwealth may, with the leave of the court, wave the felony, and charge the person with a misdemeanor; who, on conviction, shall be fined and imprisoned as in cases of misdemeanor; or the prosecutor may charge both offences in the indictment; and the jury may in such case acquit the party of one, and find him guilty of the other charge. 3. Laws. Penn. 601. s. 8. Ed.

[w. ]4. Bl. Com. 195.

[x. ]3. Ins. 47.

[y. ]4. Bl. Com. 194.

[z. ]Murder, by the act of 22d April, 1794, is distinguished into two degrees. Murder of the first degree alone is punished with death, and is the only capital crime now known to the laws of Pennsylvania. Murder perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, is deemed murder of the first degree. All other kinds of murder are deemed murder in the second degree. The punishment of this is imprisonment at hard labour, for a period not less than five, nor more than eighteen years. 3. Laws. Penn. 599. 600. s. 1. 2. 4. Ed.

[1. ]We, moderating the rigor of divine law...

[a. ]4. Bl. Com. 204.

[b. ]1. Laws. Penn. 135.

[c. ]“Every person liable to be prosecuted for petit treason shall in future be indicted, proceeded against, and punished, as is directed in other kinds of murder.” Act of 22d April, 1794. s. 3. 3. Laws Penn. 600. Ed.