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 COMMENTARIES 
 
 THE LIBERTY OF THE SUBJECT 
 
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 KELATIKG TO 
 
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 COMMENTARIES 
 
 ON 
 
 THE LIBERTY OF THE SUBJECT 
 
 AND 
 
 C6c itato!^ of d^nglantJ 
 
 RELATING TO 
 
 Cfie #rcunt|) of tj&c person. 
 
 BY 
 
 JAMES PATERSON, Esq., M.A., 
 
 BARRISTER-AT-LA\V, 
 SOMETIME COMMISSIONER FOR ENGLISH AND IRISH FISHERIES, ETC. 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 MACMILLAN AND CO. 
 
 1877, 
 
 {The Right of Translation and Reproduction is Reserzed.]
 
 LONDON : 
 
 K. (MAY. SONS, ANn TAYLOR, PlilNTrRS, 
 
 BRKAD STREET HILL, 
 
 yUfiEN VICTOUIA STREET.
 
 JC 
 SgS 
 
 PS7c 
 V. I 
 
 
 PKEFACE. 
 
 It is more than a century since Blackstone published his 
 Commentaries on the Laws of England, which were origin- 
 ally lectures delivered to students at Oxford. His object 
 was to make the methodical study of those laws part of a 
 university education. He had secured an audience of 
 inquiring minds, full of fresh aspirations, but only dimly 
 conscious of some vague influence by which the business 
 j%g of the world was guided, and more eager than certain how 
 
 2 best to share that influence. Most of his audience were 
 w ... 
 
 ^ destined to be legislators, diplomatists, warriors, priests, 
 
 ^^ heirs of great possessions, and a few were destined to the 
 
 < practice of the legal profession. But beyond that audience 
 
 M he sought to reach a still larger class of citizens, who 
 
 n^ were already engrossed with other pursuits — whether 
 
 2 acting in various capacities as jurors, magistrates, and 
 
 ^ oflicials, or as the leading artificers of that wealtli, with 
 
 ^ the pursuit of which human life is so busy. This wider 
 
 g circle must then, as now, have often been haunted with an 
 
 unsatisfied desire to know more about the laws all were 
 
 ^ bound to obey, than could be acquired in any ordinary 
 
 ij avocations. Though business is itself a legal education, 
 
 yet it is seldom found to be sufficiently broad and deep to 
 
 satisfy the wider scrutiny and insight of practical minds, 
 
 always curious to probe the secrets of this vital essential 
 
 ^ >* «^ >< 
 
 ii § >! r
 
 vi PREFACE. 
 
 knowledge. For the whole of these constituents Black- 
 stone endeavoured to clothe a theme, formerly dry and 
 repulsive, with various learning, picturesque incidents, and 
 apposite illustrations — solving doubts and laigely grati- 
 fying the intelligent curiosity of every member of the 
 community who aspired to influence his fellow-men. 
 
 How well Blackstone succeeded in his enterprise, his 
 contemporaries and successors confessed and know.^ The 
 generations of Englishmen since his day have been in- 
 debted to him for nearly all they have learnt of the 
 
 ^ C. J. Fox : " Blackstone's style of English is the very best among 
 our modern writers .... His purity of style I particularly admire. 
 He was distinguished as much for simplicity and strengih as any 
 writer in the English language. He was perfectly free from all 
 Gallicisms and ridiculous affectations, for which so many of our modern 
 authors are so remarkable. Upon this ground, therefore, I esteem 
 Judge Blackstone ; but as a constitutional writer he is by no means an 
 object of my esteem."— Trover's Fox, 512 ; 6 Pari. Deb. 314, 814. 
 
 Sir W. Jones : " Blackstone's Commentaries are the most correct 
 and beautiful outline that ever was exhibited of any human science ; 
 but they alone will no more form a lawyer than a general map of the 
 world will make a geographer." — Jones, Bailments, p. 4. 
 
 Gibbon : " Blackstone's Commentaries may be considered as a 
 natural system of the English jurisprudence digested into a natural 
 raethc^ and cleared of the pedantry, the obscurity, and suiierfluities, 
 which rendered it the unknown horror of all men of taste." — 5 
 Gibbon, Misc. W. 545. 
 
 Lord Mansfield, C. J : " In Blackstone's Commentaries you will 
 find analytical reasoning diif used in a pleasing and perspicuous style." 
 — HolUduy's Mansfield, 89. 
 
 Lord Avon more, C. J : " He it was, who first gave to the law the 
 air of a science. He found it a skeleton and he clothed it with Ufc, 
 colour, and complexion. He embraced the cold statue, and by his 
 touch it grew into health, vigour, and beauty." — Pldllips's Curran, 
 74. 
 
 Bentham (1776) : " Correct, elegant, unembarrassed, ornamented, 
 Blackstone's style is such as could scarce fail to recommend a work 
 Htill more vicious in point of matter to the multitude of his readers. 
 lie it is, in short, wlio, first of all institutional writers, has taught
 
 PREFACE. vii 
 
 wisdom of that civil polity and well balanced system of 
 laws which he professed to expound. And even those of 
 his own profession, v;ho commenced their studies under 
 the auspices of his teaching, and afterwards required to 
 pursue their course into further and better particulars, 
 have seldom outgrown the authority and deference which 
 his name has gathered year by year as its natural tribute. 
 He discoursed on doctrines, harsh and crabbed as they 
 were, with the luminous force, spirit, and elegance of 
 Addison, and there was nothing he touched, which he 
 
 jurisprudence to speak the language of the scholar and the gentle- 
 man ; put a pohsh upon that rugged science ; cleansed her from the 
 dust and cobwebs of the office ; and if he has not enriched her with 
 that precision which is drawn only from the sterling treasury of the 
 science, has decked her out, however, to advantage from the toilet 
 of classical erudition ; enlivened her with metaphors and allusions, 
 and sent her abroad in some measure to instruct and in still greater 
 measure to entertain the most miscellaneous and even the most fas- 
 tidious societies. The merit, to which as much, perhaps, as to any, 
 the work stands indebted for its reputation is the enchanting harmony 
 of its numbers, a kind of merit that of itself is suthcicnt to give a 
 certain degree of celebrity to a work devoid of every other. So 
 much is man governed by the ear." — Frag, on Gov. 
 
 Story J. : " Blackstone's Commentaries are but a compilation of the 
 laws of England drawn from authentic sources, open to the whole 
 profession, and yet in the highest sense might be deemed an original 
 work, since never before were the same materials so admirably com- 
 bined and exquisitely wrought out with a judgment, skill, and taste 
 absolutel}^ unrivalled." — Gray v Russell, 1 Story, 17. 
 
 Watkins : " The intention of that ingenious writer (Blackstone) 
 was to give a comprehensive outline, and when we consider the 
 multiplicity of doctrine which he embraced, the civil, the criminal, 
 the theoretical and practical branches of the law, we must confess 
 the hand of a master. But in the minutiae he is very frequentl}' 
 inaccurate." — Watlc. Convey. Introd. 28. 
 
 Mackintosh : " Blackstone was a great master of classical and 
 harmonious composition, but a feeble reasoner and a confused thinker, 
 whose writings are not exempt from the charge of slavishness. . . . 
 Bentham, in his Fragment on Government, wasted extraordinary
 
 viii PREFACE. 
 
 did not adorn. His fame has in no respect diminished 
 after the lapse of a hundred years ; nor is there any 
 apprehension that, notwithstanding one or two resolute 
 detractors, he will ever cease to be an English classic. 
 Some of his political doctrines, indeed, have been described 
 as scarcely acceptable even in his own age. If defects 
 might be suggested, the worst seems to be, that his tone 
 too generally was that of one who forgot the maxim, that 
 men are not made for laws, but laws for men ; and hence, 
 
 power in pointing out flaws and patches in the robe occasionally 
 stolen from the philosophical schools, which hung loosely and not unbe- 
 comingly on the elegant commentator." — Mackint. Eth. Phil. sect. 6. 
 
 Lord Ellenborough, C. J. : "Judge Blackstone had produced the 
 most elegant and classical work upon the driest subject in the lan- 
 guage ; by giving interest to the systematic knowledge of tlie law 
 he had allured the student ; and by the spirit and eloquence with 
 which he set forth the code of England he had advanced her beyond 
 calculation in the respect of other countries. He made the law of 
 England studied in other countries, and thus threw a dignity round 
 the wisdom of his own. I must be his grateful eulogist, for to him I 
 was indebted for an easy and pleasant introduction into the thorny 
 science of the law."— fi. of Lords, 1812 ; 23 Pari Deb. 1083. 
 
 Austin : " Blackstone's method is a slavish and blundering copy 
 of Hale's rude and compendious model. Neither in the general con- 
 ception nor in the detail of his book is there a single particle of 
 original and discriminating i\\o\ig\\i.'"— Outlines, p. 63. 
 
 Lord Campbell says, " Blackstone, after Bacon, was the first 
 practising barrister at the English bar, who in writing paid the 
 slightest attention to the selection or collocation of words." — 2 Camp. 
 G. J. 5GG. In other countries " Alciati was the first who taught the 
 lawyers to write with purity and elegance, and though the professors 
 of the old school clamoured against him and drove him from one 
 university to another, he soon stood not alone in scattering the flowers 
 of polite literature over the thorny tracks of jurisprudence." — 1 
 Hallam, Lit. Hist. 418. "Cujacius, hke Alciati, substituted a 
 general erudition for scholastic sul)tleties, and rendered the science 
 more intelligible and attractive. When Cujacius' name was men- 
 tioned in the public schools of Germany, every one took off his hat." 
 —2 Hallam, Lit. Hist. 1G7, 169.
 
 PREFACE. ix 
 
 he too lightly assumed to impress upon his fellow-country- 
 men, that they could never be too grateful for the excel- 
 lence of tliose laws that had been found for them. Another 
 defect which may be suggested is, that owing to his dis- 
 courses being orally delivered, and certain topics lequiring 
 to be treated within a limited space of time, the relative 
 importance of each was ill adjusted, and even his outlines 
 of most vital doctrines were too meagre to be practically 
 useful. And lastly, the method and arrangement were 
 little calculated to satisfy the understandings of those, who 
 for the first time explored so intricate a branch of know- 
 ledge — overladen at all times with its oppressive details. 
 This last defect, indeed, was not apparent to his con- 
 temporaries, for they seem to have been most of all 
 impressed by the lucid order in which he arranged his 
 materials. This, however, tends rather to show, that the 
 spell of the magician's style was over all who came near 
 liim, so that they scarcely had time to mark a blemish 
 or hesitate a dislike, while he opened page after page 
 of a book, so long sealed from their eyes, and written 
 in a tongue so unfamiliar. 
 
 But, apart from any inherent defects of Blackstone's 
 treatment and method, it is obvious that during the 
 century that has elapsed since his work was published 
 hundreds of volumes of statutes, reports, and disquisitions 
 have been produced, modifying, reversing, or abandoning 
 many false positions ^ once thought unassailable. And 
 during the same period all European nations have lived 
 ages. Communities, princedoms, powers, and dominions 
 have disappeared and reappeared under new names or new 
 
 ^ It may be said of the Law as was said of Truth, that " in retiring 
 from her outposts she has become more unassailable in her citadel." 
 —2 Hallam, Lit. Hist. 127.
 
 PREFACE. 
 
 combinatious. Organic changes have developed noiselessly 
 
 in a night. All forms of government, constitutions, 
 
 systems of laws, have more or less been put on their trial, 
 
 and tested by the inexorable logic of first principles. 
 
 Every timber of the vessel has felt the strain. Whatever 
 
 and wherever a fault existed, the fault has been seen and 
 
 felt, and in not a few instances has been amended. The 
 
 utilitarian has been abroad, and has marked many a weak 
 
 point in the armour ; and instead of invoking the traditions 
 
 of Greek or Eoman, ancient or mediaeval, civilisations to 
 
 help him, has found a ruder questioning all sufficient, and 
 
 a convenient touchstone in every market place and vestry. 
 
 A friendly echo now follows this investigator everywhere. 
 
 It can scarcely fail to be apparent, that explanations of 
 
 processes, methods, and axioms, which passed current with 
 
 the learned and wise a century ago, can scarcely now 
 
 claim the plaudits of our wider and more critical audience. 
 
 The legislature itself, which is the vigilant sentinel to 
 
 J guard against the advances of corruption and revolution, 
 
 contains new representatives commissioned by multitudes 
 
 I who were then without the pale ; powers and voices, not 
 
 then dreamt of, now claim an undisputed hearing. New 
 
 points of departure are suggested in many a settled routine, 
 
 and still an interminable procession of amendments fills 
 
 up the vista of the future. And though panting time 
 
 toils after these in vain, yet is the hope of higher 
 
 and still higher and juster laws not one jot abated. 
 
 Civilisation ^ may be incapable of definition, yet it plainly 
 
 involves a consciousness, that advancement has already 
 
 been made from worse to better, and that from eacli 
 
 ' GuizoT says, the idea of progress or development is the funda- 
 mental idea in the word "civilisation." — Civ. Europ. lect. 1.
 
 PREFACE. xi 
 
 vantage ground gained it wonld be degrading and impious 
 to retreat. 
 
 The Liberty of the Subject is, in England, a sounding 
 phrase ^ and a watchword with which to conjure the multi- 
 tude. It represents an "unknown quantity" of latent tire, 
 which kindles with the slightest breath, which rouses a spirit 
 not to be subdued, and is as contagious as it is irrepressible. 
 Like the sacred fire watched by the Vestal virgins, it has 
 now burned for centuries, and has never — or if ever, then 
 for a short time only — been extinguished. It lives in many 
 a golden line of Magna Charta, though antiquated details 
 sometimes obscure it; and the Petition of Right, the 
 Habeas Corpus Act, the Bill of Rights, Trial by Jury, the 
 Law and Practice of Parliament, the Liberty of the 
 Press and Local Self-government, breathe nothing else. 
 Whether used in the senate and the courts, or shouted by 
 the mob, this household phrase seldom fails to call up 
 a crowd of noble associations. The masses of the com- 
 munity can feel it, though they cannot be sure that they 
 can explain it.^ It is to them an instinct and a manly 
 prerogative, rather than a code. They know it as a healthy 
 light to illumine their daily life ; yet it requires the pris- 
 matic vision, of the Lawyer to trace, where and how the 
 primary colours are blended and transfused. For him it 
 must in the end be always reserved to show, how these 
 
 ' Burke says, " Grand swelling sentiments of liberty warm tho 
 heart and liberalise the mind." — Fr. Rev. 
 
 2 Adam Smith said, " The common people of England, so jealous 
 of tlieir liberty, like the common people of most other countries, 
 never riglitly understand wherein it consists." — Wealth of Nat. b. i. 
 c. 10. " The French, Swiss, and German peasants have a fair know- 
 ledge of law. But in Great Britain and Ireland the same classes 
 believe, that such knowledge is as exclusively professional as is the 
 knowledge of anatomy." — Maine's Village Com. 60.
 
 xii PREFACE. 
 
 elementary colours are even more attractive than the 
 shining ray. 
 
 To rescue the time honoured and healthy public cry of 
 the " Liberty of the Subject " from the vague and rambling 
 thoughts that too often accompany it in the street, the 
 market, and the senate, and reduce it to a language and 
 method which will make the citizens of all countries more 
 akin, may be a difficult, but it can scarcely be an impos- 
 sible task. The genius of the age is educational. It is no 
 longer deemed a merit in courts of justice to register their 
 decrees, yet to conceal their reasons. It is no longer 
 deemed masterly statecraft to mask the motive powers 
 and springs of legislation and government in secret fast- 
 nesses, and only disclose their existence by occasional 
 volleys of thunder. With a free press and an inviolable 
 senate, which think aloud for all the constituent forces in 
 the nation, every intelligent citizen breathes an atmosphere 
 of criticism and discussion, and goes along with each 
 difficult conjuncture, as if he felt and enjoyed being a 
 part of the complex mechanism. He lives and moves in 
 the general system. There being nothing to conceal, and 
 there being nothing but natural growth and development 
 desired in all directions, it is now more than ever a 
 necessity, that he should have visibly and tangibly familiar 
 to him the innermost workings and free play of our national 
 institutions in all their phases. It must, however, be con- 
 fessed, that the law is a part of our daily life, which still 
 suffers too much dispraise and eclipse in the public esteem. 
 Notwithstanding the translucid medium, under which 
 Blackstone revealed its interior works, the cultivated 
 intelligence of the crowd still marks unseemly rust and 
 cobwebs defiling the movements ; and even the friendly
 
 PREFACE. xiii 
 
 eye darkens as the finger of scorn resolutely points here 
 and there. 
 
 The Liberty of the Subject has a t-wofold meaning. 
 That it indicates the line, beyond which the crown cannot 
 lawfully interfere with the person or property of the sub- 
 ject, is naturally the first thought that occurs to all. Law, 
 as Lechmere observed,^ is the common measure of the 
 power of the crown, and of the obedience of the subject. , 
 But in its wider and higher sense, the liberty of the sub- ( 
 ject is not and cannot be confined to the mutual relations 
 between the crown and each individual : it alaouincludes 
 tjie relations between subject and subject. When the 
 individual is imprisoned or stripped of his property by an 
 unlawful authority, whether that authority purports to be 
 exercised by the crown and its servants or by a fellow- 
 citizen, the liberty of the subject is equally invaded, 
 though the outrage may be resented in the one case more 
 warmly than in the other. Hence it is, that when in- 
 telligent foreigners, and others interested, ask how and 
 whence the chief elements of this magic phrase have been 
 derived, it is by no means easy to satisfy the inquiring 
 mind. To trace the various situations and proceedings of 
 social life, where liberty is most conspicuous, and collect 
 its essence and epitome, requires a wide excursion over 
 most of the departments of the law. In order to exhaust 
 the account, scarcely one of its provinces can be safely 
 neglected. Yet while some of these, which lie closer, must 
 be minutely examined, others may be surveyed from a 
 distance. It is thus only that the whole prospect, with 
 its light and shadow, can be made to fill the mind's eye, 
 and to impress its full significance upon the memory. 
 
 1 Sacheverell's Trial, J 5 St. Tr. Gl.
 
 xiv PREFACE. 
 
 While an exhaustive account of the Liberty of the Subject 
 in England thus really resolves itself into an exposition 
 of the law, or at least a survey of all its leading landmarks, 
 the difficulty of rendering that account satisfactory is at 
 once apparent ; and at the same time the reason is dis- 
 closed, why so few intelligent citizens can go deeply into 
 it, and why so vague an impression is often left on the 
 inquirer by the explanations that are offered. It scarcely, 
 however, accounts for the want of any systematic attempt 
 having yet been made to treat this subject with the fulness 
 and practical detail naturally to be expected, considering 
 the ardent desire that must always exist to know more of 
 it, not only in Great Britain, but in Greater Britain, and 
 in foreign countries, where this crowning glory — the 
 reputed end and aim of the English constitution — has 
 acquired so just and enviable a renown. The author has 
 here attempted to meet this want and achieve a difficult 
 task. In his view the central idea involved in the Enalish 
 Liberty of the Subject becomes, on a complete analysis, the 
 polar axis on which all the municipal laws revolve, and 
 its various evolutions suggest a more true and rational 
 division of those liiws, than has hitherto been current. 
 And the adoption of a more natural distribution and ar- 
 rangement of the materials is not only valuable in itself, 
 but it will confer all the greater advantage, if, as the author 
 hopes and expects, the citizens of all other countries will 
 be thereby provided with a ready means of comparison 
 between their own laws and institutions, and those with 
 which England has long found good reason to be well 
 pleased.^ 
 
 ' De Tocqueville : " Look at Enj^land, wliose administrative laws 
 still at the present day appear so much more complicated, more 
 anomalous, more irregular than those of France ! Yet is there a
 
 PREFACE. XV 
 
 This book is thus a treatise on the laws of Eimland. 
 following, however, an arrangement entirely new, the main 
 object being to illustrate the leading principles and prac- 
 tices which intelligent citizens eagerly search for at all 
 times in those laws. With a key to the details, all can more 
 easily estimate the measure of civilisation that has been 
 reached in a country, long envied for its successful avoid- 
 ance of violent revolutions — where the equilibrium of 
 liberty has never been lost during any entire generation 
 — and where, year by year, it gains a stability, the secret 
 of which must ever be a study for all nations and com- 
 munities.^ 
 
 country in Europe, where the national wealth is greater, where pri- 
 vate property is more extended, varied, and secure, or where societj'- 
 is more stable and more rich ? This is not caused by the excellence 
 of any laws in particular, but by the spirit which pervades the whole 
 legislation of England. The imperfection of certain organs matters 
 nothing, because the whole is instinct with life." — Society in France 
 (tr. by Reeve), b. ii. c. 16. 
 
 Again the same author says : " There is not a country in the world 
 in which, in the daj's of Blackstone, the great ends of justice were 
 more completely attained than in England, that is to say, no country 
 in which every man, whatever his condition of life— whether he 
 appeared in court as a common individual or a prince — was more 
 sure of being heard, or found in the tribunals of his country better 
 guaranties for the defence of his property, his liberty, and his life." 
 — Ibid, note Ixvii. 
 
 ' Montesquieu : " The political liberty of the subject is a tran- 
 quillity of mind arising from the opinion each person has of his own 
 safety. In order to have this liberty, it is requisite that the govern- 
 ment be so constituted, that one man need not be afraid of another, 
 .... It is not my business to examine whether the English actually 
 enjoy this liberty or not. It is sufficient for my purpose to observe, 
 that it is established by their laws : and I inquire no further. Neither 
 do I pretend by this to undervalue other governments, nor to say 
 that this extreme political libevt3' ought to give uneasiness to those 
 who have only a moderate share of it. How should I have such a 
 design — I who think that even the excess of reason is not always
 
 xvi PREFACE. 
 
 All intelligent citizens can appreciate and even admire 
 the law in most of its details, when these are transacted, 
 one by one, in some signal events of the day; and on such 
 occasions the interest never flags. But in attempting to 
 follow any systematic exposition of it, they encounter at 
 the threshold so many arbitrary distinctions — a method 
 so unreal and incongruous to the business of life — details, 
 exceptions, qualifications, so multifarious and bewildering, 
 that the statesman, the magistrate, the juror, the merchant, 
 and the student alike suffer painful hesitations, and 
 shudders of aversion. The fascination of Blackstone's 
 style carried the general reader through many obstacles with 
 surprising ease, in spite of a method which was indeed 
 the common inheritance of the ages, but which never can 
 commend itself to any but lawyers, and even to them 
 only after familiarity has made it superfluous, and the love 
 of precedent has blinded their eyes to its origin. The 
 author has attempted to take the reader over the same 
 ground by a route altogether different, and always carrying 
 the lamp of the liberty of the subject into every recess 
 
 desirable, and that mankind generally find their account better in 
 mediums than in extremes." — Spirit of Laws, h xi. c. 6. 
 
 Lord Keeper Finch on the openin.f^ of the Long Parliament in 
 1640, after panegyrising the English constitution, said : " It is 
 glorious in tlie whole frame ; worth your looking upon long, and 
 worth your consideration in every part." — 2 Pari. Hist. 631. 
 
 Milton says, " No civil government hath been known — no, not 
 the Spartan, not the Roman, though both for this respect so much 
 praised by the wise Polybius — more divinely and harmoniously tuned, 
 more equally' balanced, as it were, by the hand and scale of justice, 
 than is the commonwealth of England, where under a free and un- 
 tutored monarch, the noblest, worthiest, and most prudent men, with 
 full approbation and suffrage of the people, have in their power the 
 supreme and final determination of the highest affairs." — Ref. inEng. 
 
 Fox said, " If a stranger wished to learn the constitution of Great 
 Britain, he would seek for it in its laws." — 29 Pari. Hist. 1378.
 
 PREFACE. xvii 
 
 examining each leading detail by tlie light it supplies, and 
 trying, if possible, to mark at each turn, where tradition 
 ends and reason begins^ — " where freedom broadens slowly 
 down from precedent to precedent." 
 
 The present two volumes contain a general introduction 
 to the subject of Law, discussing the current definitions 
 and divisions, as well as subjecting the details to a more 
 natural method than has hitherto been followed. And that 
 Division of the Substantive Law, entituled the Security 
 of the Person, is exhibited in complete detail, showing 
 how the law guards personal freedom at every point, 
 and what are the leading changes through which that 
 law has passed. Here will be shown not only all that the 
 law can do to protect the person against every wrongful 
 interference, but also conversely the worst that can be 
 done to the persons of those who occasion such interference 
 — the best and the worst that can happen to the body 
 under the law of England, as that law has been developed 
 up to the present time. 
 
 J. P. 
 
 Goldsmith Building, Tejjple, 
 March, 1877. 
 
 f 
 1 Any English writer behoves to bear in mind what foreigners are 
 apt to say of him : " Whoever attentively considers the English turn 
 of mind will be struck by a fact of a twofold nature : on one side 
 good sense and practical ability ; on the other, the absence of 
 general ideas and elevation of mind on purely theoretical questions. 
 Whether we turn to works on history or jurisprudence, or any 
 other subject, we rarely find that the great, the fundamental cause 
 of things has been investigated."— G^wzsoi;, Eur. Civ. lect. 14. 
 VOL. I. I
 
 CONCISE OUTLINE OF SUBJECTS. 
 
 THE LIBERTY OF THE SUBJECT. 
 
 Introd. — Chap. I. discussion of the current definitions and 
 DIVISIONS OF THE LAW. — Municipal Law — Modes of treating Law 
 — Definitions of Law Ancient and Modern — A New Definition — 
 Divisions of Law, Ancient and Modern — A New Tenfold Division 
 of Law. 
 
 Introd. — Chap. II. discussion of other divisions, terms, and 
 PHRASES used IN THE LAW.- — Liberty of the Subject — Civil 
 Liberty — Origin of Governuient — Social Contract — Constitutional 
 Law — Public and Private Law— Civil and Criminal Law — Law 
 of Nations — Law of Nature — Divine Law — Feudal Law — Civil 
 Law — Canon Law — Common and Statute Law — Judge-made 
 Law — Fictions — Precedents — Knowledge of Law — Law and 
 Equity — Codification — Meaning of Eight, Duty, Obligation, 
 Wrong, Tort, Crime, P"'elony, &c. 
 
 THE SECURITY OF THE PERSON. 
 
 Chap. I. protection of the body against threats and appre- 
 hended injuries. — Surety of the Peace and Good Behaviour — 
 Intimidation and Molestation — Trade Union — Threatening Letters 
 — Challenge to Fight— Tumultuous Assemblies — lliot — Affray. 
 
 Chap. II. protection of the body against actual injury by the 
 negligence of others. — Negligence in Carrying, Driving- — 
 Keeping of Premises, of Vicious Animals — Negligence of 
 Servants. 
 
 Chap. III. protection of the body against actual intended in- 
 juries but not malicious. — Assault and Battery — Justifiable 
 Assaults — Self-defence — Remedies Civil and Criminal. 
 
 Chap. IV. protection of the body against malicious, wilful, 
 and negligent acts which kill or wound. — Murder— Man- 
 slaughter — Homicide — Misadventure — Fighting — Poisoning- 
 Self-defence — Suicide — Coroner— Attempts to murder — Maiming 
 and Wounding. 
 
 Chap. V. restrictions owing to compulsory acts and duties 
 strictly personal. — Sumptuary Laws — Compulsory Services, &c. 
 — Name, Dress, Food, Armour — Service as Soldier, Sailor — En- 
 hstment, Impressment — Compulsory Duties and Ofiices of Juror, 
 Witness, Sheriff, Municipal Officer, Churchwarden, Overseer 
 Constable, Surveyor of Highways— Slavery. 
 
 I 2
 
 XX CONCISE OUTLINE OF SUBJECTS. 
 
 VOLUME II. 
 
 ClUP. VI. PROTEOTION OF THE BODY AGAINST WANT AND DESTITUTION. 
 
 — The Poor-laws — Vagrants — Begging — Rating of Property — 
 Removal and Settlement of Paupers. 
 
 Chap. VII. temporary arrest and imprisonment other than on 
 FINAL JUDGMENT OR SENTENCE. — Arrest for Debt — Ne exeat 
 Regno — Arrest for Crime — Bail — Ancient Trial by Ordeal, Battle, 
 Wager of Law — Turture — Peine forte et (/wre^False Imprison- 
 ment — Malicious Prosecution — Writ of Habeas Corjms. 
 
 Chap. VIII. punishment of the body by death or pains on final 
 JUDGMENT AND SENTENCE. — Imprisonm ent for Debt — Excommuni- 
 cation—Imprisonment for Crime, for Penal Offences, for Breach 
 of Contract, for Breach of Privilege of Parliament, for Contempt 
 of Court — Prisoners and Treatment — Tickets of Leave — Banish- 
 ment — Penal Ser\'itude — Solitary Confinement — Hard Labour — 
 Punishment by Whipping, Branding, Mutilation, Pillory, Stocks 
 — Capital Punishment and its Varieties — -Benefit of Clergy — 
 Expediency of Capital Punishments. 
 
 Chap. IX. variations in foregoing rights and liabilities caused 
 by age. — Infancy — Abortion — Exposure of Infants — Infanticide 
 — Concealment of Birth — Ill-treatment and Overworking of 
 Children — Maintenance and Starving of Children — Bastardy — 
 Registration of Births — Compulsory Education — Industrial and 
 Reformatory Schools — Vaccination — Punishments of Children — 
 Capacity for Crime— Majority. 
 
 Chap. X. variations in rights and duties caused by sex. — In- 
 decent Offences — Protection of Women's Chastity — Action of 
 Seduction — Abduction — Rape — Prostitution — Contagious Dis- 
 eases — Keeping Disorderly Houses— Unfit Trades and Occu- 
 pations of Women — Punishments of Women. 
 
 Chap. XI. variations in rights and duties caused by ixsanity 
 AND defective UNDERSTANDING. — Evidence of Insanity— Custody 
 of Lunatic's Person — Licensed Houses — Treatment of and Access 
 to Lunatics — Weak-minded Persons — Drunkenness and its 
 Punishments. 
 
 Chap. XII. variations in rights and duties caused by death. 
 — Respect for Dead — Extravagant Expense of Funerals — 
 Dissecting Dead — Stealing Dead Bodies — Duty to bury Dead 
 — Burial in Churchyards — Burial Service — Tombs — Enlarging 
 of Burial Grounds — Registration of Deaths.
 
 CONTENTS. 
 
 I- 
 
 INTRODUCTION. 
 CHAPTER I. 
 
 DISCUSSION OF THE DEFINITIONS AND DIVISIONS OF LAW. 
 
 PACK 
 
 Laws in general, laws of nature, and municipal laws .... 1 
 
 Municipal law contrasted with laws of nature 2 
 
 In what the two kinds of law agree 3 
 
 Supposed province of municipal law 5 
 
 Aversion of lawyers to much generalisation 6 
 
 Whether law is a science 7 
 
 Law is capable of methodical treatment 9 
 
 Methods of explaining law 1] 
 
 Historical method of treating law — laws of savages — patriarchal 
 
 law 11 
 
 Analytical method of explaining law 13 
 
 General definitions of law by various writers 14 
 
 Hooker, Burke, Dr. Johnson, Hallam, and others 15 
 
 Definitions of law by the ancients 16 
 
 Definitions of law by Justinian's Institutes and foreign writers . 17 
 
 Definitious of law by Blackstone, Paley, Bentham, and Austin . 18 
 
 Summary of current definitions of law' 21 
 
 Doubts as to ancient definition of law 2^1 
 
 Objections to current standard definition 24 
 
 Law does not prescribe a course of conduct 25 
 
 Objection to current definition as giving no specific purpose to 
 
 the law 26 
 
 A new definition of municipal law 27 
 
 Law is restriction on human actions 28 
 
 Law includes forms for giving effect to some human actions . . 31 
 
 Part of definition as to supreme power of state 32 
 
 As to how law is enforced 34 
 
 Easiest mode of enforcing law is to allow the subjects to take 
 
 part in making law 38
 
 xxii CONTENTS. 
 
 PAGE 
 
 Object of law is that all may follow their occupations with 
 
 greater security 39 
 
 Security is end and scope of all municipal laws 42 
 
 Object of law is not to enforce virtue 43 
 
 Law does not dictate occupations 45 
 
 Current divisions of municipal law 46 
 
 One division is into judicature, legislature, and government . . 46 
 
 These are machinery to work substantive law 48 
 
 Divisions of the substantive law 48 
 
 Division of law by Roman and foreign writers 49 
 
 Division of law according to English writers 51 
 
 Hale and Blackstone's division of law 51 
 
 Bentham's and other divisions of law 53 
 
 Objections to current division of law . 55 
 
 What is best division of municipal law 55 
 
 Reasons for discarding the division into the law of persons . . 57 
 Ancients not likely to have attained just notions of division of 
 
 law 59 
 
 Best division of law is according to subjects of hmnan occupa- 
 tions 60 
 
 First division is security of person 60 
 
 Variations in division caused by age, sex, sanity, and death . . 62 
 
 Second division is security of property 63 
 
 Third division is security of marriage 64 
 
 Fourth division is security of public worship 65 
 
 Fifth division is security of thought, speech, and character . . 66 
 
 Sixth division is security of contract and business 66 
 
 Seventh division is security of foreigners 67 
 
 Division of administrative law is threefold 67 
 
 Eighth division of law is judicature 68 
 
 Ninth division of law is legislature 68 
 
 Tenth division of law is executive government 68 
 
 Summary of tenfold division of law 69 
 
 Outline of division of whole law 70 
 
 CHAPTER II. 
 
 EXPLANATION OF PHRASES AND TERMS USED IN THE LAW. 
 
 Other divisions and terms used by legal authors 71 
 
 Meaning of liberty of subject and civil liberty 71 
 
 Views of Locke, Somers, Beccaria, and others 72 
 
 Current accounts of liberty and difficulty of reconciling them . 72 
 
 Liberty of suliject arises from legal restrictions 7i 
 
 There is no absolute liberty 74 
 
 Liberty not confined to bodily freedom 75 
 
 Liberty not estimated by number of restraints 77 
 
 Liberty is counterpart of legal restraint 77 
 
 Distinction of absolute and relative rights 78 
 
 Natural rights of man 79
 
 CONTENTS. xxiii 
 
 Origin of government, social contract, and divine right ... 79 
 
 Theory of growth from barbarism 80 
 
 Theory of divine right and original contract 81 
 
 Opponents of theory of original contract 83 
 
 Reason why theory of original contract keeps its ground ... 86 
 
 Distinction of constitutional law 87 
 
 Distinction of public and private law 88 
 
 Distinction of civil and criminal law 90 
 
 Useful only for practical purposes 92 
 
 (commercial law 93 
 
 Distinction of the law of nations, what 93 
 
 Relations between nation and nation in peace and war .... 94 
 
 Relations between individuals of different nations 95 
 
 Private international law 96 
 
 Public international law 97 
 
 How law of nations arises 97 
 
 Distinction of law of nature 99 
 
 Definitions of law of nature 99 
 
 Law of nature has no historical l)asis 100 
 
 Distinction of law as to malum in se and malum prohibitum . . 103 
 
 If this distinction well founded 104 
 
 Distinction of the divine law 107 
 
 Ancient codes professing a divine origin 108 
 
 How far Christianity is part of law of England Ill 
 
 Divine law not enforced like municipal law 114 
 
 Blasphemy as part of municipal law 116 
 
 The feudal law 118 
 
 Theory on which it was founded 121 
 
 Abuse and decay of that law 123 
 
 The civil law what 124 
 
 The Roman law called the civil law 125 
 
 Its importance and application in England 126 
 
 The canon law 128 
 
 Distinction of common and statute law 130 
 
 Written and unwritten law 131 
 
 Origin of connuon law 131 
 
 Statute law is supplementary to connuon law 132 
 
 Theories as to origin of common law 134 
 
 How customs grow into common law 137 
 
 Supposed superiority of common law to statute law 1 38 
 
 Velum in ousness of statutes 139 
 
 Judiciary, or judge-made law, what 140 
 
 Necessity of judge-made law 141 
 
 Objections to judge-made law answered 143 
 
 Mode of judicial reasoning 145 
 
 Legal fictions 146 
 
 Adherence of courts to precedents 148 
 
 When precedents not deemed binding 152 
 
 Adherence to precedents assumes means of knowledge of the 
 
 law 153 
 
 Presumption that every one knows the law 155 
 
 Reason of this maxim 155
 
 XXIV 
 
 CONTENTS. 
 
 PAGE 
 
 Law and Equity and distinction of courts 157 
 
 Equitable jurisdiction as to trusts 160 
 
 Some vague notions of this distinction 161 
 
 Origin in usurping legislative power 161 
 
 Codification of law how far necessary 164 
 
 What is reasonable form of codification 166 
 
 Objections usually made to codification 168 
 
 Complaints of intelligent citizens as to want of code .... 169 
 
 Duty of government to codify laws 171 
 
 Codification treated as a public benefit 173 
 
 Confused state of English law requiring code 174 
 
 Definition of current phrases and words used in the law . . . 176 
 
 Definition of right, duty, obligation 176 
 
 Definition of the word equity 176 
 
 Meaning of word wroug 177 
 
 Meaning of word tort 178 
 
 Meaning of word crime 178 
 
 Quasi crimes punished by justices 179 
 
 Meaning of treason, felony, misdemeanour 179 
 
 THE SECURITY OF THE PERSON. 
 
 The security of the person 183 
 
 First division of whole law is that relating to the body . . . 183 
 
 Twofold aspect of security of person 184 
 
 Chief heads of first division of the law as to security of person . 184 
 
 Arrangement of chapters of first division 186 
 
 CHAPTER I. 
 
 PROTECTION OF THE BODY AGAINST THREATS AND APPREHENDED 
 
 INJURIES. 
 
 Kind of remedy against threats of personal injury 188 
 
 What is a threat of personal violence 189 
 
 A threat to do only moderate harm 190 
 
 Threatening looks and conduct 191 
 
 Whether one who libels another can be made to give security of 
 
 the peace 191 
 
 Who grants the remedy of security of the peace 193 
 
 By and against whom security of the peace obtained .... 194 
 
 How application for security of the peace is supported .... 195 
 
 Whether defendant can contradict the facts 196 
 
 How long a i^arty may be imprisoned for not giving security of 
 
 the peace 197
 
 CONTENTS. XXV 
 
 PAGE 
 
 Mode of arresting and binding over a party to security of the 
 
 peace 199 
 
 Eflect and binding force of the recognisance 200 
 
 Getting recognisance of the peace discharged 201 
 
 Surety of the peace required in some cases by statute .... 202 
 
 How far surety for good behaviour may be ordered 203 
 
 If security for good behaviour can be enforced against libellers . 206 
 
 Surety for good behaviour ordered by statute 207 
 
 Certain written threats punished more severely 207 
 
 Whether judge or jury construe the written threat 208 
 
 Letter demanding money without cause 208 
 
 Letter threatening to accuse in order to extort 209 
 
 Challenge to fio-ht how treated 211 
 
 Challenge to fight may be verbal or written 211 
 
 Attempt to provoke a challenge is a crime 212 
 
 Criminal information granted for challenge 213 
 
 Usual punishment of challenge to fight 213 
 
 Intimidation and molestation in business 213 
 
 Principle of common law as to interfei'ing with another's work . 214 
 
 Ancient law as to freedom of trade 214 
 
 Trade unions interfering with work 217 
 
 Action for decoying another's servant 217 
 
 Old statutes as to servants leaving service 218 
 
 Series of statutes as to combinations of workmen 219 
 
 Trade union not illegal in itself 220 
 
 Modem definition of intimidation in another's business . . . 220 
 
 Fair argument by trade union is legal 222 
 
 Now legal for workmen to strike simultaneously 222 
 
 Tumultuous assemblies 224 
 
 Unlawful assembly distinguished from riot, rout, affray . . . 225 
 
 How riot distinguished from high treason 226 
 
 Riot as regards mutual liability of those engaged 227 
 
 Riot as to its origin and common purpose 229 
 
 How far one may assemble friends for self-defence 229 
 
 Riots to demolish buildings 230 
 
 Individuals stopping a riot 231 
 
 Remedy against rioters 232 
 
 Early legislation for putting down riots 233 
 
 Reading the Riot Act 235 
 
 Duty of justices after proclamation of riot 237 
 
 Duty and discretion in using military force in riots 238 
 
 Remedy for property injured by rioters 240 
 
 What is an aflray 241 
 
 Who may stop an afiray 243 
 
 Punishment for an afi"ray 244
 
 XXVI 
 
 CONTENTS. 
 
 CHAPTER 11. 
 
 ACTUAL INJURY TO THE BODY BY THE NEGLIGENCE OF OTHERS. 
 
 PAGE 
 
 Injury to body by negligence of others 246 
 
 Negligence distinguished from accident 247 
 
 Where the injury is fatal 247 
 
 Who can sue for negligent killing 249 
 
 Within what time action for negligent killing to be brought . . 249 
 
 Compensation for negligent killing 250 
 
 How compensation estimated 250 
 
 Rules for ascertaining when negligence exists 252 
 
 The person injured or killed must not have been himself negli- 
 gent 253 
 
 Contributory negligence in the case of coaches racing .... 253 
 
 Negligence implies a want of wilful intention 254 
 
 A chain of accidents from negligence 255 
 
 Where negligence is self-evident and is presumed 257 
 
 Negligence always a question of fact and cu'cumstances . . . 257 
 
 Classification of circumstances displaying negligence 258 
 
 Negligent carriage of passengers by railway 258 
 
 Railway accidents when implying negligence 258 
 
 Courts have often to decide if there is evidence of negligence . . 259 
 Statutory requirements in further protection against railway 
 
 dangers 260 
 
 Driving negligently and furiously on highways 261 
 
 Negligence in carrying passengers in ships 262 
 
 Risks of inviting persons to enter premises 263 
 
 Negligence in keeping premises near highway 264 
 
 Negligence near highway in rural places 264 
 
 Negligence in premises adjoining streets 265 
 
 Negligent acts on highways 267 
 
 Occupiers of private roads 267 
 
 Negligence in not repairmg highways 268 
 
 Negligence in keeping vicious dogs and animals 269 
 
 Dangerous and mad dogs 271 
 
 Injuries caused to third parties by servants 272 
 
 Negligence of a servant acting on his own account or for another 
 
 master 273 
 
 How servants' acts are distinguished from contractors' .... 274 
 
 Injuries caused by servant to fellow-servants through negligence . 275 
 Reason why master not liable for injury by one servant to a 
 
 fellow-servant 276 
 
 Discovery of this rule an example of judge-made law .... 277 
 
 How far servant has claim against master for injuries in service . 279 
 
 How far master warrants tackle used by servants 279 
 
 Negligence of servants and masters in dangerous trades . . . 281 
 
 Negligence of physicians and surgeons 282 
 
 Negligence in selling poisons 283 
 
 NegUgence in setting spring-gims and engines 283
 
 CONTENTS. xxvii 
 
 CHAPTER III. 
 
 PROTECTION OF THE BODY AGAINST INJURIES INTENTIONAL, BUT 
 
 NOT MALICIOUS. 
 
 PAO F. 
 
 Wilful or intentional injuries classified 287 
 
 Assault and battery 288 
 
 Intention as ingredient of assault . 289 
 
 The means used to assault 290 
 
 Assault or blow must be actual or imminent 291 
 
 Assault implies that it is against consent 293 
 
 Some assaults are excusable or justifiable 293 
 
 Self-defence against blows 294 
 
 Assault in defence of wife or child 295 
 
 In defence of master or servant 296 
 
 All justifiable assaults must be to protect, not revenge .... 296 
 
 Assault in chastising children 296 
 
 Schoolmaster correcting children 298 
 
 Assault in correcting apprentices 298 
 
 Masters assaulting servants , 299 
 
 Husbands assaulting wives 301 
 
 Churchwardens assaulting persons misbehaving in church . . . 301 
 
 Assault to stop persons fighting 302 
 
 Assault in defence of possession of property 302 
 
 Assault in defence of property must be moderate 304 
 
 Assault in ejecting stranger from house or land 305 
 
 Assault in disputes as to possession of real property 305 
 
 Turning out trespasser with constable's assistance 307 
 
 Assaults in prize fighting 308 
 
 Assault in executing legal process 308 
 
 Remedies for assault generally 310 
 
 Punishment of assault by justices of the peace 310 
 
 Justices punishing for assaults on women and children . . . . 311 
 
 Justices are to give certificate in assault cases 311 
 
 Effect of justices' decision in assault cases 312 
 
 Justices may in some cases refuse to decide 313 
 
 Maximum of punishment by justices in assault cases . . . . 315 
 
 Justices cannot give compensation for assault 316 
 
 Some assaults treated as misdemeanours 316 
 
 Assaults on parents treated as common assaults 317 
 
 Assault in a court of justice 318 
 
 (Jriminal remedy for assault by information 318 
 
 Indictment for assault 319 
 
 Remedy for assault by action of damages 320 
 
 Finality of damages as remedy 321
 
 SXVIU 
 
 CONTENTS. 
 
 CHAPTER IV. 
 
 PROTECTION OF THE BODY AGAINST MALICIOUS, WILFUL, AND 
 NEGLIGENT ACTS WHICH KILL OR WOUND. 
 
 PAOK 
 
 Murder the worst of human crimes 322 
 
 If murder is the earliest crime recognised 323 
 
 Definition of murder 323 
 
 Murder means killing of a human being 324 
 
 Murder of foreigners 325 
 
 Origin of word murder 326 
 
 Murder of infants 326 
 
 Murder of sick and aged persons 327 
 
 Where murdered person is confidentially related 328 
 
 Mental capacity of the murderer 329 
 
 Murder by drunkards 330 
 
 Murderer must be a free agent 331 
 
 Two shipwrecked persons on a plank 331 
 
 Malice as an ingredient of murder 332 
 
 Malice is the element distinguishing murder from manslaughter 
 
 and accident 333 
 
 Express and implied malice 335 
 
 Malice prepense 335 
 
 Secrecy not necessary to malice in murder 336 
 
 Malice does not imply gam or profit to murderer 336 
 
 Personal animosity not necessarily implied in murder .... 337 
 
 Case of aiming at one and killing another 338 
 
 Provocation as an ingredient in murder 339 
 
 Mutual fighting and a fatal issue 342 
 
 Fatal accidents in contests of skill and prize-fights 343 
 
 It is for the jury to decide on malice 344 
 
 Murder by one of several acting illegally together 345 
 
 The parties implicated in murder 346 
 
 Receiving felon into one's house 348 
 
 Murder excludes the notion of lawful business or conduct . . 349 
 
 Killing in self-defence 350 
 
 Saving one's self by flight before killing pursuer 351 
 
 A woman defending her honour 353 
 
 Killing in defence of wife, child, and relative 353 
 
 Husband killing an adulterer . . 353 
 
 Killing in defence of exclusive possession of property .... 355 
 
 Killing to prevent crime 357 
 
 Murder in arrests by officers of law 357 
 
 General requirements as to a valid arrest 359 
 
 Killing in correcting children 361 
 
 Killing in course of cruel conduct 361 
 
 Fighting and duelling is not lawful conduct 363 
 
 Killing by sentence of the law 367 
 
 The means used for murdering 367
 
 CONTENTS. xxix 
 
 PAGE 
 
 Killing by drugs or meiins of cure 368 
 
 Killing by keeping dangerous animals 369 
 
 Killing by communicating infectious disease 369 
 
 Killing by swearing away another's life 370 
 
 Poison as a means of murder 371 
 
 Killing must be consequence of the act charged 373 
 
 Killing in order to be murder must be within the year .... 373 
 
 Killing proved only by evidence of body being found .... 375 
 
 Death by accident or misadventure 376 
 
 Ancient laws confounded accidental death with murder . . . 377 
 
 The same want of discrimination in early English law .... 378 
 
 Difficulties of the ancients in punishing homicide 379 
 
 The notion of a blood avenger 380 
 
 The murderer's relatives also punished 381 
 
 Cities of refuge and sanctuaries ' 382 
 
 Ancient practice as to accepting fines for murder 385 
 
 Ancient English law as to fines for murder and sanctuaries . . 385 
 
 Confiscation of thing causing death — deodands 387 
 
 Ancient remedy by appeal of murder 389 
 
 IVIurder now triable by indictment 391 
 
 The indictment and trial for murder 391 
 
 The sentence on murderers 393 
 
 Suicide how far included in mui-der 393 
 
 Perplexity of the ancients as to suicide 395 
 
 Influence of Christianity on views of suicide 396 
 
 Capital punishment by way of suicide 397 
 
 Gladiatorial contests a kind of suicide 397 
 
 Suicide how far a crime at common law 398 
 
 Ancient and modern punishment of suicide 399 
 
 Other legal consequences of suicide 401 
 
 Discovery of murderer and function of coroner 401 
 
 By whom and how coroners appointed or elected 405 
 
 Authority and duty of coroner 406 
 
 Fees and expenses of coroner 409 
 
 Removing or dismissing a coroner 409 
 
 If coroner's court a public court 410 
 
 The coroner's jury and verdict 411 
 
 Attempts to murder how far crimes 411 
 
 Ancient law of lex talionis 412 
 
 The lex talionis in England 413 
 
 Defects of the lex talionis 414 
 
 Statutes against maiming and wounding 414 
 
 The modern crimes of attempts to nuu'der 416 
 
 The modern crimes of causing grievous bodily harm 417 
 
 iNIutilation of the body for special objects 418 
 
 Causing bodily harm by spiteful acts and conduct 419 
 
 Self-mutilation as a crime 419
 
 XXX CONTENTS. 
 
 CHAPTER V. 
 
 RESTRICTIONS ON HUMAN ACTIONS OWING TO COMPULSORY ACTS 
 
 AND DUTIES. 
 
 Contrast between ancient and modern law as to minute interfer- 
 ence with daily conduct 422 
 
 Sumptuary laws 424 
 
 Laws relating to things strictly personal 424 
 
 Right of locomotion 424 
 
 Compulsory occupations as servants 425 
 
 Compulsory hosts 425 
 
 Billetting of soldiers 426 
 
 Compulsory knighthood 428 
 
 Compulsory attendance at church 429 
 
 Restrictions as to names 429 
 
 How names usually acquired 430 
 
 Change of name how far competent 431 
 
 Restrictions as to food 433 
 
 Restrictions as to dress 435 
 
 Compulsory change of dress 438 
 
 Men wearing women's clothes 438 
 
 Painting the face 439 
 
 Compulsory keeping of armour 43.9 
 
 Right of wearing arms 441 
 
 Compulsory service as a soldier 443 
 
 Enlistment of soldiers now an ordinary contract 445 
 
 Pimishment of soldiers deserting 445 
 
 Arrest of soldiers for crime or debt 446 
 
 Peculiar punishments in army, military flogging 446 
 
 Marine service on shore how controlled 447 
 
 Militia service how far compulsory 447 
 
 Impressment of seamen how far legal 448 
 
 Authorities as to impressment 450 
 
 Essential injustice of impressment 451 
 
 Compulsory office of juror 453 
 
 Jurors divided into common and special 454 
 
 Qualification and attendance of jurors 454 
 
 Punishment of juror for nonattendance 455 
 
 Juries kept separate from parties 455 
 
 Juries during adjournment 457 
 
 How far juries must be unanimous 458 
 
 Jury deciding by lot 461 
 
 Accident to juror during trial 461 
 
 How far jurors punishable for misconduct 461 
 
 Compulsory duty of witness 464 
 
 Mode of enforcing attendance of witness in civil proceedings in 
 
 High Court 464 
 
 How far papnent of witness's expenses required 466 
 
 Remedy for witness not attending High Court 468
 
 CONTENTS. xxxi 
 
 PAGE 
 
 Commitment of witness for disobeying subpama 468 
 
 Action against witness for not attending 469 
 
 Summoning witness in Parliament 470 
 
 Witnesses before inferior courts and statutory judicial officers . . 470 
 
 Witnesses summoned by justices of the peace 471 
 
 Justices enforcing attendance of witnesses in indictable offences . 471 
 
 Justices enforcing attendance of witnesses at petty sessions . . 473 
 
 Protection of witness from arrest during compulsory service . . 474 
 
 Compulsory office of sheriff ; 475 
 
 Qualification of sheriff 476 
 
 By whom sheriff is appointed 477 
 
 Sheriff refusing to serve 477 
 
 Compulsory municipal offices 478 
 
 C'omijulsory office of constable and special constable .... 479 
 
 Compulsory office of churchwarden 481 
 
 Qualification of churchwarden 482 
 
 Nomination of churchwarden 482 
 
 Enforcing service as churchwarden 483 
 
 Compulsory office of overseer 484 
 
 Compulsory office of surveyor of highways 484 
 
 Slavery as a compulsory service 485 
 
 XTniversal pi-evalence of slavery 487 
 
 Greek and Roman slavery 488 
 
 Slavery in the early Christian centuries 488 
 
 Anglo-Saxon slavery 489 
 
 English slavery after the Conquest 490 
 
 Modern view of indefensible nature of slavery 492 
 
 Contract to serve another for life how far legal 494 
 
 Kidnapping and stealing human beings 495 
 
 Penal servitude 496
 
 INTEODUCTION. 
 
 CHAPTEE I. 
 
 DISCUSSION OF THE DEFINITION AND DIVISION OF THE LAW. 
 
 Lato in general. Distinction between laws of nature and 
 municipal law. — All writers upon municipal law, who treat 
 the subject methodically, find it necessary in the outset to 
 discriminate between the two leading significations of the 
 word "law" which pervade the languages of all civilised 
 nations. The laws of nature or of natural phenomena 
 are those abstract rules of cause and effect, which the Great 
 Architect has impressed on the external world and its 
 elemental changes. These laws are fixed and immutable, 
 though generally hidden from superficial inquirers. They 
 can only be arrived at by some power of reflection, and in 
 most cases only after a wide induction from careful obser- 
 vations ranging throughout time and space. The innate 
 curiosity of man, springing from the restless desire to 
 better his condition, prompts him to discover these laws ; 
 and by their aid he unlocks the secrets of nature, and 
 gratifies his sense of power. By his capacity to reflect, to 
 distinguish, to analyse, and explain, he differs from the 
 lower animals ; and brings his knowledge, gathered from 
 many sources, to bear upon each subject, until his mastery 
 over material things is established. And the laws of the 
 mental and moral world are searched for by methods akin 
 to those used for the material world, though by subtler 
 processes and among more volatile elements. When the 
 laws of nature have been thus discovered, the chief aim of 
 
 VOL. I. B
 
 2 ON THE LIBERTY OF THE SUBJECT. {intro. 
 
 man is to adapt his conduct and operations so as to con- 
 form to them, for by such conformity alone can he make 
 them minister to his well-being. And by so acting he can 
 achieve results which, within his own range of influence, 
 are far-reaching and durable. The farther his researches 
 are carried, the more variety of occupation he makes for 
 himself. He attains heights of knowledge and power, and 
 a consciousness of growing civilisation, which are them- 
 selves good, and constantly refresh his mental and moral 
 nature, as well as augment his material comfort and 
 happiness. 
 
 Municipal law contrasted with laws of nature. — But with 
 municipal laws, or those laws which govern the mutual 
 relations of individuals in communities and nations, the 
 fundamental notion is altogether different. Instead of 
 these being fixed and invariable, and being searched for 
 ah extra in external phenomena, instead of their existing 
 altogether independent of man, they are essentially made 
 by man himself. They are devised to meet his own wants ; 
 it is not his wants that are accommodated to them. The 
 laws of nature are historical facts, — they point to the past — 
 to the beginning of time, and a Great Architect, whose 
 will alone is the measure and the limit of all knowledge 
 concerning them. On the other hand, the municipal laws 
 are devised by man himself, and devised for no other 
 purpose than to further his own pursuits. They are the 
 creatures of his own necessities. While the laws of nature 
 are searched for because they already exist, the municipal 
 laws exist only from the time when they are fashioned and 
 settled. They vary, and disappear and reappear, and if 
 man were blotted out of the world, they would perish with 
 him. While the laws of nature are indestructible, the laws 
 ■ of man are provisional and temporary, reflecting his passing 
 cares and pursuits — following him as a shadow, and not 
 leading him as if he were a captive. It is not, however, to be 
 supposed, that, though the municipal laws are made Ijy man 
 himself, they necessarily on that account conflict with the 
 laws of God and nature. On the contrary, as will be seen 
 hereafter, the law-maker usually searches for his materials 
 in the storehouse of nature itself, and in the recesses of his 
 own being, both mental and physical. He takes and 
 adapts these to his purpose. But it is only when and
 
 CTi. I.] LAWS OF NATUEE. 
 
 because these are accepted and adopted, that they become 
 part of the municipal law. 
 
 In what the, laws of nature and municipal laws agree. — 
 But though the laws of nature differ from municipal laws in 
 their origin and relation to man, there is one respect in 
 which they agree, and that is the influence which they 
 exert, directly or indirectly, on the conduct of man in ail 
 situations of life. The laws of nature, being divinely 
 appointed, influence man's conduct by making his life all 
 but impossible, unless they are observed and obeyed. They 
 are irresistible, and compel his submission wherever he 
 turns ; he cannot escape from them, and yet cannot alter 
 them. The municipal laws, on the other hand, being 
 entirely artificial, are made so as to imitate the laws of 
 nature,^ but can only exact such a halting obedience as 
 is the fruit of choice rather than of compulsion. They 
 compel, it is true, after a fashion, but not by any direct and 
 immediate action. They operate circuitously through the 
 
 ^ Some pliilosophers have speculated as to whether the notion of 
 municipal law or of the laws of nature comes fir^t in order of time, 
 that is, whether we, having first acquired the notion of a municipal 
 law, afterwards give a hke name to the settled order of events which 
 we observe in nature, and call them laws also ; or whether, having 
 first acquired the notion of laws of nature from our observation and 
 experience, for example, of the laws of heat, falling bodies, flowing 
 water, &c., we give a like name to the rules which are prescribed to 
 us by third parties. This may be treated as an unsettled specula- 
 tion ; but the better opinion seems to be that the two notions 
 are contemporaneous. Others try to learn something as to the essence 
 of municipal law from the etymology of the word "law" in different 
 languages. Aquinas, Suarez, Valentia, &c., derived the word " law," 
 or lex, from ligo, to bind ; others derive it from lego, to read : Cicero 
 derives it from deligo, to elect or choose, inasmuch as a law implies 
 a choice of two things. These etymological inquiries may be said 
 to throw no light whatever on the matter. 
 
 Burke thus alludes to this subject: "Surely there cannot be a 
 more pleasing speculation than to trace the advances of men in an 
 attempt to imitate the Supreme Ruler in one of the most glorious of 
 His attributes, and to attend them in the exercise of a prerogative 
 which it is wonderful to find intrusted to ;.the management of so 
 weak a being. In such an inquiry we shall indeed frequently see 
 great instances of this frailty, but at the same time we shall behold 
 such noble efforts of wisdom and equity as seem fully to justify the 
 reasonableness of that extraordinary disposition, b}- which men in 
 one form or other have been alwaj's put under the dominion of 
 creatures like themselves." — Abr. Eng. Hist. ch. ix, 
 
 B 2
 
 i ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 reason, and by reaching the springs of human action. 
 Man follows, and is intended to follow them, not because 
 he cannot help it, but because reason itself says it is 
 prudent to obey them. In this one respect both laws agree, 
 namely, in the ultimate result of being followed and at- 
 tended to, and this common feature binds both kinds of law 
 as species under one genus. The one is intended to be an 
 imitation of the other, not only in its certainty and uni- 
 formity, but often also in its origin ; for nearly all codes of 
 barbarous nations purport to have a divine origin. This 
 arises, however, only from the artifice of legislators, who, in 
 order to exact from rude communities a readier obedience 
 to municipal laws, find no easier and more effectual means 
 of doing so than by announcing them as the very voice of 
 Heaven.^ Such an advantage, though invaluable at the 
 starting-point, becomes at a later stage a grievous impedi- 
 ment and drag. For when obedience thus secured has 
 grown with the growth of society, and has become a second 
 nature, it is then too readily deemed an act of impiety to 
 change and improve what has been referred to a super- 
 human source. Thus a law, though in itself essentially 
 transitory and flexible, and capable of adapting itself 
 to new wants as they arise, becomes stereotyped, and 
 impedes the very movements essential to progress.^ 
 
 ^ Plutarch says tliat Lycurgus, Nuraa, and other great men, 
 finding their people difficult to manage, and alterations to be made 
 in their several governments, pretended commissions from Heaven, 
 which were salutary at least to those for whom they were invented. 
 — Fluf. Numa. See further, post, Introd. ch. ii. 
 
 s " Those who will admit of no change in the state would render 
 errors perpetual, and, depriving mankind of the benefits of wisdom, 
 industry, experience, and the right use of reason, oblige all to 
 continue in the miserable barbarity of their ancestors, which suits 
 better with the nature of a wolf than that of a man." — A. Sidney en 
 Govt. p. 405. 
 
 " It is observed by the best writers on this subject, that those com- 
 monwealths have been most durable and perpetual which have often 
 reformed and recomposed themselves according to their first institu- 
 tion and ordinance, for by this means they repair the breaches and 
 counterwork the ordinary and natural effects of time." — Pym loij. 
 8 St. Tr. 342. 
 
 Venice in the middle ages prided itself on the irrevocability of 
 its laws, and most of the tiavellors and liistoriaiis of the time 
 lic'lieved this to be a sure sign of its immortality and of its extra- 
 ordinary wisdom and insight ! — Thuanus, Hist. Ocean. 56.
 
 CH. I.] SUPPOSED PROVINCE OF LAW. 5 
 
 Supposed 'province of municipal law. — Wliile municipal 
 laws are created by man for his own purposes, it is natural 
 to inquire what those purposes are. This, however, is an 
 obscure and difficult research. Nothing is so closely 
 interwoven with daily life as the law and its rules and 
 restrictions. No human employment is withdrawn from 
 its all-pervading influence, or so remote and isolated that 
 it is not confronted at one stage or another as with an 
 inscription on the wall, " Thus far shalt thou come and no 
 farther." All the businesses of life repose on this essential 
 condition — that there are limits in all directions, created 
 by members of the community, each against each — limits 
 which cannot with safety be overpassed. This sense of 
 restriction haunts all the myriad occupations of man, like 
 a wandering voice. What it is — whence and whither it 
 comes and goes — might well exercise the speculations of 
 philosophers. For society, in all the stages of its pro- 
 gress — in all conditions of time and place — whether loosely 
 cohering in wandering tribes, or built up, tier upon tier, of 
 
 Harrington declared that "the republic of Venice would be im- 
 mortal — a commonwealth having no cause of dissolution, and 
 standing with one thousand years of tranquillity upon her back." — 
 Harr. Oceana. 
 
 Hale says : " He that thinks that a state can be exactly steered 
 by the same laws in every kind as it was two or three hundred years 
 since, may as well imagine that the clothes that fitted him when he 
 was a child should serve him when he was grown up as a man. 
 The matter chungeth the custom : the contracts the commerce : the 
 dispositions, educations, and tempers of men and societies change in 
 ai long tract of time, and so must their laws in some measure be 
 changed, or they will not be useful for their state and condition. 
 And besides all this, Time is the wisest thing under heaven." — 
 Hale's An. of Lato. 
 
 " In modern days a condition of stagnation and decline has been 
 the actual condition of many politioal societies for long periods of 
 time. It is a condition prepared always by ignorance or neglect of 
 some moral or economic laws, and determined by long-continued per- 
 severance in a corresponding course of conduct. Then the laws which 
 have been neglected assert themselves, and the retributions they inflict 
 are indeed tremendous. In the last generation and in our time the Old 
 and New Worlds have each afforded memorable examples of the 
 reign of law over the course of political events. Institutions main- 
 tained against the natural progress of society have ' foundered 
 amidst fanatic storms.' Other institutions upheld and cherished 
 against justice and humanity and conscience have yielded only to 
 the scourge of war," — D. of ArgylVs Reign of Laiv, 431 (3rd ed.).
 
 6 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 closely knit communities — all silently pursuing their 
 complicated occupations — has always had laws of some 
 kind. Many a sage like Socrates, surveying the scenes 
 of the marketplace, must have pondered over the secret 
 why and how so many independent activities can be 
 made to act so harmoniously. It is true that Homer 
 said the Cyclops had no laws and no political constitu- 
 tions.^ Herodotus says the same of the Androphages, and 
 yet that they were great breeders of cattle."-^ Historians 
 say that the ancient Eomans after the expulsion of their 
 kings had no laws for twenty years, till they sent com- 
 missioners to inquire, and these brought them the Twelve 
 Tables. The ancient Abyssinians, ruled by the descendant 
 of the Queen of Sheba, were also said to have had no 
 laws.^ And travellers have reported of the Caribbeans that 
 they had no laws, and each killed his wife at pleasure.'* 
 The Iroquois Indians are said to have relied on senti- 
 ments of shame, and had no punishments.^ And we are 
 told that when there was no king in Israel, every man 
 did that which was right in his own eyes.*^ But these 
 sayings do not conflict with the results of universal ex- 
 perience, that all nations and tribes must consciously or 
 unconsciously have laws of some kind, and customs are 
 the laws of barbarians. 
 
 Aversion of lawyers to much generalisation. — Yet the 
 range or province of municipal law is a problem which the 
 great thinkers of the world have done little to solve. ISTor 
 is the main reason of this far to seek. The mimicipal law 
 is nothing, if it is not practical, and it cannot be known in 
 its practical details without great and persistent toil. The 
 master spirits of philosophy have shrunk from the irk- 
 someness of penetrating so many petty, devious, and sordid 
 labyrinths, and have passed them by on the other side as 
 naught but a mighty maze without a plan. The votaries of 
 the law, on the other liand, have been so engrossed with 
 details, that they have not cared to apply their minds to 
 theories and systems, which they themselves have found 
 all but useless and unprofitable. They have always 
 gladly cast aside the abstract for the concrete, and have bid 
 
 1 Horn. Odyss. vi. 5 ; ix. 106 ; x. 200. ^ gerod. b. 4. 
 
 » 1 Univ. liist. * 15 Univ. Mod. Hist. 233. ^ 3 Schooler. Ind. 184. 
 
 •^ Judg. xvii, G.
 
 CH. I.] WHETHER LAW IS A SCIENCE. 7 
 
 farewell for ever to the dreams of science.^ Between these 
 two classes — the class that had the will but not the means, 
 and the class that had the means but not the will — little 
 care has been expended on arranging and reducing to 
 order so many and multifarious materials. 
 
 Wliether law is a science. — Hence the difficulty which 
 presents itself of treating municipal law as a science at 
 all, tliough such a name has been suggested with more 
 and more energy in recent times. It is natural, indeed, 
 that a dignity which is not denied to humbler subjects — to 
 Shells and Insects, to Sound, and Colour, and Heat — 
 should be claimed for the greatest and most potent body of 
 knowledge which concerns the children of men — a know- 
 ledge which reaches, directly or indu'ectly, all stations 
 
 1 Hale said great men usually neglect the study of the English 
 laws.— Hale's Hist. C.L. 140. 
 
 Lord Mansfield said that ignorance on subjects of law was ex- 
 tremely pardonable, since the knowledge of particular laws required 
 a particular study of them ; that the greatest genius without such 
 study could no more become master of them, than of Japanese 
 literature without understanding the language of the country. — 
 15 Pari. Hist. 9U0. 
 
 BuKKE, writing a few years (1757) before BlacTcKtone's Commen- 
 taries were published, says : " The law has been confined and drawn 
 up into a narrow and inglorious study ; an indigested method, and a 
 species of reasoning the very refuse of the schools. Young men 
 were sent away with an incurable, and, if we regard the manner of 
 handling rather than the substance, a very well-founded, disgust." — 
 Ahr. Eng. Hist. ch. ix. 
 
 An acute citizen of the world lately made this comment on English 
 law : " The faults as well as the excellences of the English cha- 
 racter arise from that great dislike to generalise which has made 
 us the practical and in many instances the prejudiced people that we 
 are. Abroad, a knowledge of general or natural law, of the founda- 
 tions on which all laws are or ought to be based, enters, as a matter of 
 course, into a liberal education. In England lawyers themselves dis- 
 regard this study as useless, or worse than useless. They look, and they 
 look dihgently, into English law, such as it is, established by custom, 
 precedent, or Act of Parliament. They know all the nice points and 
 proud formalities on which legal justice rests, or by which it may be 
 eluded. The conflicting cases and opposing opinions which may be 
 brought to bear on an unsound horse or a contested footpath, are 
 deeply pondered over, carefully investigated. But the great edifice 
 of general jurisprudence, though standing on his wayside, is usually 
 passed by the legal traveller with averted eyes ; the antiquarj' and 
 the philosopher indeed may linger there, but the plodding man of 
 business scorns to arrest his steps." — 2 Buhcer's Hist. Char. 13.
 
 8 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 and classes, and challenges the attention of governors and 
 governed alike, searching the roots of social life far and 
 wide. To watch and guide the changing details of the 
 law and direct its next evolutions, is the business of 
 politics, which is the most conspicuous occupation of 
 practical minds. Politicians constantly emulate each 
 other in balancing and forecasting the conditions of this 
 progress — in guiding the centre of motion — in rounding 
 angularities, removing obstacles, levelling up or down, 
 according to the motive forces in the ascendant. But 
 when and why some laws were ever made at all, or, if 
 made, when or why they should not be unmade — when 
 it is best to stop and when to advance — when to speak 
 and when to be silent — when to efface and when to restore 
 or expand — these are secrets which have baffled the 
 scrutiny of all the ages, and the wisest of men can show 
 more easily how little they know of them than how to 
 explain them. When a system of knowledge has no fixed 
 range of action and an ever-shifting foreground — when its 
 principles are little better than changing maxims of 
 expediency — the mere saws and instances of the hour — 
 while its origin and progress are alike desultory, fortuitous, 
 and uncertain — when no person can divine in what direc- 
 tion it is tending, and what are the legitimate limits of its 
 domain — it is almost an abuse of lan^uacfe to call law a 
 science, though it may be the most transcendent of all the 
 arts.^ The universal influence it wields over the conduct of 
 man in the business of the world entitles it in any case to 
 the first importance. Finch said that the sparks of all 
 the sciences in the world were raked up in its ashes.^ By 
 
 1 "Jurisprudence, according to the primary and established sense of 
 the word, especially on the Continent, is the science of the Roman 
 law, and is seldom applied to any other positive system, but least of 
 all to the law of nature." — 1 Hallam, Lit. H. 415. 
 
 Sir William Jones says : — "The great system of juj-isprudence, 
 like that of the universe, consists of many subordinate systems, all 
 of which are coimcctcd by nice links and beautiful dependencies, and 
 each of which is reducible to a few plain elements. If law be a 
 science, and really deserve so sublime a name, it must be grounded 
 upon principle, and claim an exalted rank in the empire of reason ; 
 but if it be merely an uncoimccted series of decrees and ordinances, 
 its use may remain, though its dignity may be lessened, and he will 
 become the greatest lawyer who has the greatest natural or artificial 
 memory." 2 1 Wynne, Eun. 70.
 
 CH. 1.] LAW IS CAPABLE OF METHOD. 
 
 whatever name it may be called, the law is the great 
 touchstone by which all human affairs are more or less 
 tested, at least as between man and man. And if the 
 present definition of science is too restricted, it may well 
 be extended sufficiently wide to include the eldest born 
 and the natural protector of all the rest.^ 
 
 Law ca-pabU of methodical treatment. — But though law 
 can scarcely be viewed as a science, at least in the sense 
 in which that word has been usually applied, it is not the 
 less a system of knowledge capable of being reduced to 
 order, and pre-eminently calling for clear arrangement. 
 Law has not only the whole field of practical life to in- 
 fiuence, but it has an army of officers, ministers, and 
 functionaries to work it out, not forgetting a vast array of 
 magistrates and jurors evoked from the crowd to circulate 
 and apportion its most practical lessons. Its influence 
 is brought to bear on difficulties as they arise. The legal 
 profession must be educated, and those of the public, who 
 choose to learn what is so invaluable when learned in time, 
 but what is so costly when learned too late, naturally 
 expect to master without much difficulty what each is 
 
 ' It may be said that law is no more capable of being treated as a 
 science than religion. Both require to deal too closely with the un- 
 reflecting, the ignorant, and the simple-hearted (to each and all of 
 whom they must be accessible) to be capable of being reduced to a 
 rigid system of rules, growing out of each other in logical sequence 
 and development. If they could be compreliended only by a rigorous 
 application of thought, like a science, they woidd shoot over the 
 heads of those whom it is their greatest pride to protect and 
 console. 
 
 Burke finely observes : " And freedom is not a thing that lies hid 
 in abstruse science. It is a blessing and a benefit, not an abstract 
 speculation ; and all the just reasoning that can be had upon it is of 
 so coarse a texture, as perfectly to suit the ordinary capacities of 
 tiiose who are to enjoy and those who are to defend it. Far from 
 any resemblance to those propositions in geometry and metaphysics 
 which admit no medium, but must be true or false in all their lati- 
 tude, social and civil freedom, like all other things in common life, 
 are variously mixed and modified, enjoyed in very different degrees, 
 and shaped into an infinite divevsity of forms, according to the 
 temper and circumstances of every community." — Burke, Shf. of 
 Bristol. 
 
 " Government is a practical thing made for the happiness of man- 
 kind, and not to furnish out a spectacle of uniformity to gratify the 
 schemes of visionary philosophers." — Ibid.
 
 10 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 assumed already to know. What is to be learned can best 
 be learned by reducing all that can be reduced to first 
 principles, by arranging subjects in their natural and most 
 intelligible order, and explaining what is pre-eminently 
 addressed to the reason of all by adducing the best reasons 
 that have been given by sages of all times, or if none have 
 been or can be given, then by admitting this defect without 
 yielding to an abject credulity. Law differs from other 
 arts and systems of knowledge in anything but this, that 
 it is most readily learned and mastered when the method 
 and the arrangement are the best- attainable. At the same 
 time, none of the other learned professions treats with such 
 unconquerable repugnance all attempts to generalise too 
 much. To insist, as some teachers have done, on mapping 
 out the whole field of human knowledge as a preliminary 
 condition to mastering an empirical system, or even to 
 tarry long in marshalling with nice precision its true place 
 in the array of the arts and sciences, demands too great a 
 reach of abstraction. Far-reaching reflection is doubly 
 odious to those whose affairs are always urgent, who have 
 only time to snatch an instant solution from the readiest 
 judge sitting at the gate, who care little for formulas and 
 methods, and everything for results. The details of practical 
 law — and there is no other law zealously pursued — are 
 already too great to allow time to ponder over the ultimate 
 axioms and postulates, which scientific minds have by 
 severe analysis found buried fathoms deep in its crude 
 materials. A subject which requires the study of a life- 
 time, so that the longest liver is almost always the wisest 
 lawyer, does not tolerate a lengthened preamble. Yet in 
 spite of all this rooted aversion to first principles, no one 
 can doubt that a large chapter of knowledge, professedly 
 addressed to the reason of practical men, and which 
 assumes to punish them for not knowing and not attending 
 to it, and which moreover it is the pride of the leaders of 
 society to be constantly engaged in amending and im- 
 proving, must be susceptible of such a method, of such 
 illustrations and explanations as will effectually fix the 
 attention and memory. All other branches of human 
 knowledge readily yield to this treatment. If law, apart 
 from the mere technicalities inseparable from its daily 
 manipulation and workmanship, cannot be made intelligible,
 
 CH. I.] METHODS OF EXPLAINING LAW. 11 
 
 and arrange itself in the mind as the mirror, or at least 
 the semblance of practical reason, it must be the fault of 
 those who profess to explain it. This much is self-evident, 
 that unless thoroughly understood and cordially accepted 
 in all its cardinal^ doctrines, it cannot be wholly obeyed ; 
 and if it is not capable of being obeyed it must be a delu- 
 sion and a snare, invented to harass and mock the natural 
 craving for superior knowledge, which in civilised commu- 
 nities is a possession so highly prized. 
 
 Metliods of ex2')laining laio. — In entering upon the 
 threshold of the subject, there are two courses open to 
 him who seeks to make the law most easily understood. 
 One is to trace historically from small beginnings in the 
 rudest ages the growth of those rules and canons which 
 ultimately take shape and consistence among all advanced 
 communities. The other is to take the law as found in its 
 highest development in a civilised nation and resolve it 
 into its ultimate elements or factors, bearing in mind that 
 practical knowledge begins where philosophy ends. While 
 some things are too intricate for ordinary observers, the 
 theories of the wise must often be assumed as the starting- 
 point for those, who so soon become engrossed in the busy 
 round of life. 
 
 The historical method of treating law. — Law of savages. — • 
 Patriarchal origin of laio. — The historical method, though 
 seldom systematically followed up, is well calculated to 
 arrest the attention and to yield abundant materials to 
 interest and attract. During the last century or more 
 travellers have added much to our knowledge of some rudi- 
 mentary conditions of the human race. Many curious 
 particulars as to the habits of tribes living far below the 
 lowest Q-rade of civilisation have been collected, and some 
 insight obtained into their way of thinking, or rather of 
 acting. Some tribes of men are thereby shown to differ 
 scarcely in any respect from the beasts of the field, except 
 in their semblance to the human form divine, and in the 
 higher intelligence which is inseparable from such a form. 
 All the typical features of the fully-developed law are 
 conspicuous by their absence, or rather, by tlieir anti-types. 
 Marriage there is none, but entirely the reverse of it in all 
 its details. Contracts are not needed ; crime is neither 
 known nor punished. Individuals have no rights and no
 
 12 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 wrongs, distinguished from those of the tribe or clan. 
 Representative institutions, trial by jury, incorruptible 
 judges, habeas corpus, trespass, slander, trade unions, gaols, 
 and workhouses, are abstract ideas far beyond the reach of 
 savage minds, and if uttered to them would be nothing but 
 foolishness. All that corresponds to law in this primaeval 
 or degraded state consists in trapping and eating one's 
 adversary. AH commerce consists in satisfying the bodily 
 appetites. All morality, religion, and education consist 
 in sacrifices and war-dances. Hunting and witchcraft may 
 be said to divide between them all that flows from reason ; 
 these exercise body and mind alike, and fill up the pauses 
 of appetite. It is true that tribes are also found in many 
 quarters of the world only a little higher in advancement, 
 others again higher and higher, until some of the linea- 
 ments of those institutions usual in a settled and populous 
 community are discerned. These glimpses of human 
 progress in various stages may be found in the pictured 
 pages of travellers and historians. But notwithstanding 
 all their scattered lights, it is impossible to construct any 
 intelligible history of how the law came to expand into its 
 present full development, what conditions supplied the 
 impulse and directed the growth. Sir Eobert Filmer tried 
 to frame a theory of government by tracing society from 
 Adam and Eve to the seventeenth century. He steadily 
 searched for, and always contrived to find, the patriarchal 
 system embodied in every stage — the divine right for the 
 kings, and the passive obedience for the subjects. But 
 Locke had little difficulty in exposing the flaws, assump- 
 tions, and self-contradictions manifold, winch were con- 
 spicuous in his specious chain of deduction. And most 
 authors since those days have rested content with occasional 
 glimpses of old-world ideas visible in ancient codes and 
 histories, but with many a chasm of darkness between. 
 The historical method fails chiefly in its history. It fails 
 to tell whether the savage state is the first state or the last 
 — the starting-point of all, or the falling away and lowest 
 degradation of the many. It solves none of the secrets 
 when, how, or by what subtle influences the noble savage 
 of the woods was transflgured into the peaceful citizen — 
 how the spear became a plougiishare, and the vengeful and 
 murderous blow became a warfare of words transacted by
 
 CH. I.] ANALYTICAL METHOD OF LAW. 13 
 
 third parties on a stage — how most of the complicated wants 
 of man came to be satisfied by some appropriate remedy, 
 or quieted altogether by the knowledge that no remedy at 
 all can be found. 
 
 The analytical method of exijlaining law. — The analytical 
 method is the other means of studying and seeking some 
 mastery of the law. To resolve the main processes and 
 machinery of the law into the elementary principles and 
 axioms, is to suggest at once the best division of details, 
 and to supply the best clue to the knowledge of what is, 
 and to the secret of what ought to be. The law is always 
 transforming and expanding itself by a process analogous 
 to the growth of a tree. It is seen among savage tribes as 
 a seed or root or a sapling, and after the lapse of ages it is 
 the pride of the forest. The root has gradually accommodated 
 itself to the soil and searched in all directions for support, 
 and according to the soil so is the tree and the branches. 
 The leaves and branches and trunk have changed, and yet 
 the identity has remained. But why the root has travelled 
 more in one direction than another — why the branches lie 
 more to the east or the west — why they take this shape or 
 that, and finally why one soil is more kindly than another, 
 are secrets too deep for the scrutiny of ordinary men. Yet 
 it is something to know what is the interior mechanism of 
 the tree— the circulation of the sap — the organic structure 
 of the wood, the bark, the leaves, and the roots, the chem- 
 istry of the soil — the mutual relations of the constituent 
 members. Analysis can only carry us a few stages, and 
 none can wholly explain why one nation has a more favour- 
 al)le soil than another, and why the tree is here and there 
 of a statelier growth. Human nature serves as common 
 ground, but patriotism and national vanity cover it over 
 with flowers and leaves of mantling green. The variety of 
 soils and situations, however, can scarcely fail to suggest 
 comparisons, reflections, and researches ; and as no system 
 of law has yet approached perfection, and the best seems 
 the busiest in searching out still better principles, better 
 processes, and better ends and aims, it must be invaluable 
 to resort to some common classification and some standard 
 of advancement, round which these can be grouped for 
 common reference. Such advantages are those which 
 analysis alone can supply.
 
 14 ON THE LIBEETY OF THE SUBJECT. [intro. 
 
 General definitions of law hy various writers. — Such being 
 a general survey of the bearings of the municipal law, it 
 is necessary to approach nearer, and inquire what definition 
 of the word has been arrived at by the great writers of 
 ancient and modern times. And at this stage it is salutary 
 to reflect that it may be altogether impossible to give any 
 definition at all, for however common may be the experience 
 which each individual almost necessarily acquires of some 
 of the processes of the law daily going on around him, he 
 may yet be wholly unable to fix its generic and specific rank 
 with scientific exactness. Nor is there much to surprise 
 in this state of things, for notwithstanding the researches 
 and the reflections of many centuries, the philosophers can- 
 not be said to have yet settled among themselves how to 
 define truth, beauty, virtue, conscience. Yet every one 
 will admit that each of these is not only an existing thing, 
 but familiar to his thoughts and feelings, however difiicult 
 to express their discriminating qualities.^ It would be 
 
 ^ In considering tlie scientific value of definitions, it should be 
 recollected that the sense of satisfaction derived from a definition, 
 or from the best reason to be given for a doctrine or rule, is not 
 always proportioned to the increase of information or insight afforded. 
 The mathematicians, in expositions of their science, have not shrunk 
 from an endeavour to explain why it is that a body to which motion 
 is communicated moves in a straight line. Thus PoissoN, in his 
 " Mecanique Celeste," P. ii., p. 1, § 113, says that the reason is that 
 " no reason can be stated why a body should not move in a straight 
 line." And this, though a merely negative reason, satisfies the mind, 
 and at least takes the edge ofi: further inquiry. Probably on similar 
 grounds it is that amid all the many definitions of virtue which the 
 moralists of all times have been busy in constructing, demolishing, 
 refining away, and canvassing, there is a soothing satisfaction left in 
 the mind by that much-abused yet irrepressible definition given by 
 many, that virtue is nothing else than "the eternal fitness of things." 
 Few persons can avoid ringing changes on this old idea. It is a 
 singular coincidence that Bentham unconsciously follows the mathe- 
 maticians in his explanation of the essential equality of the law. 
 He says, " No reason can be assigned why the law should seek to give 
 one man more than another." — 1 Benth. W., 302. 
 
 Thus Cicero well expresses what many of his successors have only 
 repeated in language slightly different : " The impulse which directs 
 to right conduct and deters from crime, is not only older than the 
 ages of nations and cities, but coeval with that Divine Being who 
 sees and rules both heaven and earth. Nor did Tarquin less violate 
 that eternal law, though in his reign thei'e might have been no 
 
 I
 
 CH. I.] DEFINITIONS OF LAW. 15 
 
 impossible to collect all the attempts made in different ages 
 to fix the meaning of municipal law, and possibly many of 
 these only end wliere they began, and substitute a synonym 
 or a circuity of many words for two or three. Some authors 
 resort to the language of eulogy, and avoiding close inspec- 
 tion or distracting details, dilate only on its gilded exterior 
 and most conspicuous features. 
 
 Hooker, Burke, Dr. Johnson, Mackintosh, on law. — 
 Hooker eloquently says that " law has its seat in the bosom 
 of God — has a voice, which is the harmony of the world — 
 the least feel her care and the greatest are not exempted 
 from her power, and angels, men, and creatures admire her as 
 the mother of their peace and joy." Such an account indeed 
 must often have astonished those who thought they had 
 reason to know best, and to feel strongly how many terrestrial 
 infirmities clung to the most admired justice. Burke also 
 extolled law as the pride of the human intellect and the 
 collected reason of ages ; Dr. Johnson looked upon it as 
 displaying the greatest powers of the understanding ; and 
 Mackintosh viewed the progress of jurisprudence as the 
 noblest of spectacles, in which, during the long course of 
 ages, cases of difficulty were gradually withdrawn from 
 brutal force and arbitrary discretion, and subjected to 
 inflexible rules. Hallam also carefully avoided commit- 
 ting himself to any attempts to fix the area of law. 
 Eulogies such as these, bestowed on their familiar work, 
 lawyers would scarcely dare to think or speak ; but, when 
 volunteered by bystanders, may well be welcomed and 
 cherished with pride.^ 
 
 written law at Rome against such violence, for tlie principle that 
 impels us to right conduct and warns us against guilt, springs out of 
 the nature of things. It did not begin to be law when it was first 
 written, but wlien it originated, and it is coeval with the Divine 
 Mind itself."— C/c. De Leg. 
 
 1 Hooker, Eccl. Pol. b. i.— Hallam has observed that Hooker's de- 
 scription of law is in substance the same as the definition of Eternal 
 Law by Suarez. But the criticism seems unjust to Hooker, whose 
 originality and eloquence cannot suifer by the coincidence.— Sir 
 J. Mackintosh says that Hooker referred to " the law of nature." 
 —Mack. Disc. L. of Nations. What is meant by the law of nature 
 is afterguards discussed. — See Introd. ch. ii. 2)ost. 
 
 Hallam has said that " no systematic science, Avhether by the name 
 of jurisprudence or legislation, can be laid down as to the principles
 
 16 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 Dejinitions of lavj hy the ancients. — Definitious in law 
 can scarcely be said to be favourites, and tliey are some- 
 times pointed out as signals for caution.^ Yet the search is 
 enticing, and it may be useful to see what great authorities 
 have suggested as a definition of municipal law. The 
 ancient codes were too practical, and their legislators too 
 much in earnest, to trouble themselves about this require- 
 ment, the desire of later and more critical ages. The 
 Indian codes, tliose of Persia, of Moses, the older Greeks 
 and Eomans, contain no attempt either to define or to 
 make a division of the law. And many of the philoso- 
 phers approach, rather than grapple with, the same subject. 
 Socrates seemed to think the distinguishing charac- 
 teristic of law was that it was dependent, not on caprice, 
 liut on the will of the gods, was unchangeable, and yet 
 adapted to all conditions of humanity. Plato thought 
 it was tlie enforcement of the three primary virtues — 
 knowledge, fortitude, and temperance — and that without 
 laws we should live like beasts.^ Epicurus said without 
 laws men would devour one another.^ Aristotle thought 
 law was a declaration emanating from the common consent 
 of the community as to everything we ought to do, and as 
 
 which ought to determine the institutions of all nations, or, in other 
 words, the laws of each separate community cannot be regulated by 
 any universal standard in matters not depending upon eternal 
 justice." — 2 Hall. Lit. Eur. 586 (3 ed.). " Law has been studied 
 in general rather as an art than a science." — 2 Hall. Mid. Aq. 
 342 (12 ed.). 
 
 ^ 8wiNBURN says : " Definitions are said to be dangerous in law." 
 — Wills and Test. p. 1, sect. 3. The Eoman Digest also noticed the 
 perilous nature of definitions, the defects of which were so easily 
 exposed by others. — Digest., b. 50. Burke said the rights of men 
 are incapable of definition, but are not impossible to be discerned. 
 —Fr. Bev. 
 
 Yet fallacies in reasoning are m circulation, which have retarded 
 law reform as well as confused the law itself, and which seem to 
 arise from nothing else but a want of any clear definition of law and 
 its province, as for example in copyright, blasphemy, and forfeiture 
 for crime, and other cliapters. So late as 1799 Abbott, a lawyer, 
 afterwards Speaker, o]i])oscd Ihe abolition of forfeiture in language 
 which would be untenable in the present day.— 34 Pari. Hist. 1068. 
 Definitions, or attempted definitions, have this negative value, that 
 they quickly expose any confusion of thought in those who use 
 them. 
 
 ■■' Plato, De Leg. ix. ^ Plutarch.
 
 CH. I.] DEFINITIONS OF LAW. 17 
 
 enjoining one class of actions and forbidding others.^ And 
 he elsewhere says, it directs every one how to act on all 
 occasions.^ Demosthenes also more rhetorically described 
 the law as designed to ascertain what was just, honourable, 
 and expedient, and as the invention of Heaven;^ Cicero, 
 admitting that municipal law often deviated improperly 
 from natural law, said that it was, or ouglit to be, a certain 
 eternal principle, which governed the entire universe, 
 wisely commanding what was right and prohibiting what 
 was wrong.'* 
 
 Definitions of law in Justinian's Institutes and later 
 foreign writers. — Justinian's Institutes contain no defini- 
 tion of law beyond this, that justice is the constant and 
 perpetual disposition to render every man his due ; that 
 jurisprudence is the science of what is just and unjust ; 
 and that the precepts of the law are to live honourably, 
 to hurt no one, and to give every man his due.^ Paul 
 and Ulpian said law was the art of the just and good.^ 
 
 Scarcely one of the succeeding writers is satisfied with 
 the definitions of his predecessors.'^ 
 
 1 Arist. De Civ. cap. 14, sec. 2. Eth. b. v. cIi. i. § 11, 12. 
 
 2 Rhet. ad Alex. cli. i. 
 
 ^ Demosthenes — " Tlie design and object of tlie laws is to ascertain 
 what is just, honourable, and expedient, and when that is discovered, 
 it is proclaimed as a general ordinance, equal and impartial to all. 
 This is the origin of law, which for various reasons all are 
 under an obligation to obey, but especially because all law is the 
 invention of Heaven, the resolution of wise men, the correction 
 of every offence, and the general compact of the state : to live in 
 conformity with which is the duty of every individual in society." — 
 Orat. c. Aristog. Professor Christian says this definition of Demos- 
 thenes' is perfect, and prefers it to Blackstone's. — 1 B!. Cum. 442 n. 
 
 * Cic. De Leg. b. 1, 2. 
 
 s Just Inst, b. i. tit. 1. 
 
 « Dig. i. 1, De Just.et Jur. 11 f. Paid. Dig. i. pr. f. Ulp. 
 
 ^ Aquinas — " Law is a certain rule and measure, according to which 
 a-ny agent is led to act or restraineil from acting." 
 
 SuAREZ — " Law is a certain measure of moral acts, so that when in 
 conformity with it they are morally right, when disconhint l'n;m it 
 they are wrong." — t^uarez, De Leg. 
 
 Montesquieu — "Laws are the necessary relations resulting from 
 the natm-e of things." — De I'Espr. b. i. 
 
 Beccaria— " Laws are the conditions under which men naturally 
 independent unite themselves in society." — On Crimes, ch. ]. 
 
 Grotius — " Law is a rule of moral actions ubliging us to that 
 which is good and commendable." — De Jure., b, i. ch. 1. 
 VOL. I. C
 
 18 . ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 Definitions of lavj ly English writers. — The definitions of 
 some of the leading ancient and foreign writers on this 
 
 PuFFENDORFF — " Lfiw is tlie injunction of liim who has a power 
 over those to whom he prescribes." — B. i. ch. 6, § 1. 
 
 Barbeyrac — " Law is tlie will of a superior sufficiently notified, by 
 which he directs all actions of a certain kind, so that in regard to 
 such actions he either imposes on them a necessity of doing or not 
 doing certain things, or leaves them at liberty to act or not act as 
 tliey shall judge proper."- — Notes to Grntlus, b. i. ch. 1, § 9. 
 
 BURLAMAQUi's definition is substantially the same as that of 
 Barbeyrac. 
 
 Kant—" Civil law is distinguished from moral, inasmuch as the 
 former legislates only wth respect to external actions, and provides 
 for the freedom of all -by Hmiting and defining that of individuals. 
 Strict law may be represented as the possibility of a general and 
 reciprocal restraint, harmonising according to universal laws with 
 the liberty of all." 
 
 The Scotch writers define law as follows : — 
 
 Stair (1681) — " Law is the dictate of reason, determining every 
 rational being to that which is congruous and convenient for the 
 nature and conditions thereof, and this will extend to the deter- 
 mination of the indiflierency of all rational beings. Liberty is the 
 natural faculty to do that which every man pleaseth, unless he be 
 hindered by law or force." — Stair, 1,2, 1. 
 
 Mackenzie — "Law is the science which teaches us to do justice, 
 and justice is a constant and perpetual will and inclination to give 
 every man what is due to him." — Inst. tit. 1. 
 
 Erskine — " Law is the command of a sovereign containing a 
 common rule of life for his subjects, and obliging them to obedience." 
 —Ersk. Inst. 1, 1, 2. Pr. 1, 1, 1 (1754.) 
 
 McDouALL — " Law is the rule of voluntary actions of rational 
 beings, prescribing what ought to be done or forborne. " — Instil. 
 1, 1,1 (1751). 
 
 French authors thus define law : — 
 
 "Law is a rule established by an authority, which one is bound to 
 obey." — 1 Duranton, Droit Fr. § 29. Rogron, Codes Fr. Litrod. i. 
 
 " Law is the rule of those human actions which have for their prin- 
 ciple the free exercise of the intelligence and the will." — 1 Toullier, 
 Droit Civ. Fr. 2. 
 
 "Laws arc nothing else but the rules of human conduct, and this 
 conduct is nothing else but the steps which a man makes towards his 
 end, and his end is to know and love God."~] hmaf, Droit Civ. ch. 1. 
 American authors thus define law : — 
 
 Kent adojjts the definition of Blackstone with a slight omission, 
 for he delines municipal law as "a rule of civil conduct prescribed 
 by the supreme power of a state."— 1 Kejif Com. 440. 
 
 Dagge — " Law in the genus is that faculty whereby some lawfid 
 superior prescribes rules of action, which those in subjt-ction are 
 obliged to pertorm luider certain penalties express or implied." — 
 Crim. L. vol. i p. 2.
 
 CH. I.] ENGLISH DEFINITIONS OF LAW. 19 
 
 subject vary much, and if we turn to the law of England 
 as treated by English writers, we find that definitions were 
 almost entirely dispensed with till the time of Blackstoue. 
 Glanville, Fleta, and Britton avoid a detinition ; and all 
 that Bracton says is, that law is a just statute, ordering 
 what is right and honest, and prohibiting the contrary.^ 
 Fortescue alludes to law as a holy sanction commanding 
 whatever is honourable, and forbidding the contrary ; - and 
 again " as the bond of right by winch a man is constrained 
 to do or to suffer what is just."^ Coke, the least methodical 
 of all great writers, nowhere defines law ; nor does he give 
 any other division of law than that of common law, statute 
 law, and custom.* And as he believed that the Star Chamber 
 kept all England quiet, he must obviously have been 
 satisfied with the ancient definitions. It is to be regretted 
 that Bacon's imperial mind was not more closely applied to 
 a definition of the law. He says, however, that the end and 
 scope which laws ought to regard, and to which they should 
 direct their cou] mauds and sanctions, is nothing else than 
 that citizens may live happily. ° In the tract " On the 
 Use of the Law," wdiich is believed not to be Bacon's, the 
 use of the law is said to consist in three things : " first to 
 secure men's persons from death and violence ; second, 
 to dispose of the property in their goods and lands ; and 
 third, for preservation of their good name from shame and 
 infamy." " It is still more unfortunate that Hale gives 
 no detinition, though, as will be afterwards =tated, he gives 
 an analysis or division of its subjects. Hobbes defines 
 law to be the command of the sovereign power addressed 
 to the subjects, declaring what every one of them may do, 
 and what they must forbear to do.^ 
 
 1 B. i. cli. 3. ^ De Laud. cli. 3. ^ De Nat. p. i. c4i. 30. 
 
 4 Co. Lit. 110 b. 115 b. 
 
 5 Bac. De Augm., Aph. 5. This indeed was only repeating the 
 reasons of Minos : Strabo, b. s. " Bac. W. (Spedding.) 
 
 '' Hobbes touches on the subject in several places : " Law was 
 brought into the world for nothing else but to limit the natural 
 liberty of particular men in such manner as they might not hurt, 
 but assist one anotlier, and join together against a common enemy." 
 — Commonw. p. ii. ch. xxvi. " In all kinds of actions by the laws 
 pretermitted men have the liberty of doing what their own reasons 
 shall suggest for the most profitable to themselves." — Ibid. ch. xxi. 
 "Civil law is to every subject those rules which the comn.onwealth 
 
 c 2
 
 20 ON THE LIBERTY OF THE SUBJECT. [intbo. 
 
 Definition of law hi/ Blackdone, Paley, Bentham, Austin. 
 — Blackstone describes the total laws of one nation or com- 
 munity whencesoever derived as the municipal law of that 
 nation. " I call it," he says, " municipal law, in compliance 
 with common speech : for though strictly that expression 
 denotes the particular customs of one single inunicipiurn, 
 or free town, yet it may with sufficient propriety be applied 
 to any one state or nation which is governed by the same 
 laws and customs. And municipal law, tlms understood, 
 is properly defined to be a rule of civil conduct, prescribed 
 by the supreme power in a state, commanding what is right 
 and prohibiting what is wrong."^ 
 
 Paley does not expressly define what he means by muni- 
 cipal law, except in so far as he assumes it to be the same 
 thing as the law of the land, and that again is something 
 that is consistent with the will of God, the will of God 
 being discoverable from the Scriptures and the light of 
 nature, or the calculation of the consequences of particular 
 acts on our individual happiness.^ But possibly the key 
 to his notion is found in his definition of civil liberty, 
 which, h<3 says, is "the not being restrained by any 
 law but what conduces in a greater degree to the public 
 welfare." ^ 
 
 Bentham defines law thus : — " A law is a discourse con- 
 ceived mostly in general, and always in determinate words, 
 ■expressive of the will of some person or persons, to whom, 
 
 hath commanded hira by word, writing, or other sufficient sign of 
 the will to make use of for the distinction of right and wrong, that 
 is to say, of what is contraiy, and what is not conti-ary to tlie rule." 
 — Ibid. cli. xxvi. ; see also Ihid. pt. iii. ch. xlii. " Law is the com- 
 mand of him or tliem that have sovereign power given to those that 
 be his or their subjects, pulilicly and plainly declaring what every 
 ■one of them may d^, and what they must forbear to do." — Dialog. 
 Law. and. Fhil. "Civil laws are nothing else but the commands of 
 him who hath the chief authority in the city for direction of the 
 luture actions of the citizens." — Dom'in. cli. vi. 
 
 Cumberland, again repeating Minos, said tlie good of the whole 
 was the standard and aim of all laws. — De Leg. 
 
 Sir H. Finch says law is an art of well ordering civil society. — 
 On Law. 
 
 Sheppard : Law is a rule for tlie governing of civil society to give 
 to every man that which doth belong to him. — Epitome, 683. 
 
 1 1 BI. Com. G5. 
 
 ' Paley, Mor. Phil. li. ii. ch. iv. ; b. iii. p. i. ch. iv. 
 
 3 Paley, Mor. Phil. b. vi. ch. v.
 
 CO. I.] STANDARD DEFINITION OF LAW. 21 
 
 ou the occasion and in relation to the subject in question, 
 whether by habit or express engagement, the members of 
 the community to which it is addressed are disposed to pay 
 obedience." ^ 
 
 Austin defines law to be " a command which obliges a 
 person or persons to a course of conduct, or a command 
 which obliges a person generally to acts or forbearances of 
 a class. And a command implies a sanction, that is, a 
 power to inflict evil or pain on the party who disobeys." ^ 
 
 Bummary of the current definitions of law. — It thus 
 appeal's that the prevailing definition of law amongst 
 English writers, and one which does not, notwithstanding 
 the variety of phraseology, substantially differ from those 
 adopted by Aristotle, Cicero, and leading writers of other 
 nations, is this, that law is "a rule of civil conduct pre- 
 scribed and enforced by the state " — to which some add 
 the, words " commanding what is right and prohibiting 
 what is wrong." The latter words have been objected to 
 as assuming either that what the state commands must 
 always be right, or tliat, if its commands should be wrong, 
 then they cannot be laws — both of wdiich alternatives are 
 untenable. The amendment of Blackstone's definition 
 which was adopted by Kent, and substantially also by 
 Austin, is thus the standard definition, namely, that "law 
 is a rule of civil conduct prescribed and enforced by the 
 state." 
 
 Douhts as to ancient and current definition of laiv. — At 
 this stage, where we have arrived at the standard definition 
 of law that has been in vogue from the time of Aristotle 
 and Justinian, and accepted by Hale, Blackstone, and 
 Austin, it may be useful to reflect for a moment on some 
 reasons for doubting, whether that definition was likely to 
 have correctly fixed the true function and place of the law 
 in the economy of tlie world. A correct definition of it 
 could only be arrived at by a comparison of tlie law of one 
 nation with that of others, as then known, and by a view 
 of the details which usually make up the complex notion 
 of law in each instance. Can it be said that at any epoch 
 of the ancient world, even the most penetrating intellect 
 had before it materials fit for a wise conclusion ? The 
 
 ^ Chrestom. sect. 8. 
 
 2 Austin, Juris, vol. i. pp. 91, 98 (Srd ed,).
 
 22 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 practice of Greece and Eome and the communities flourish- 
 ing before and around them in the age of Aristotle, Cicero, 
 and Justinian could scarcely shed a true light on this point. 
 The leading ideas that are the glory of the modern law 
 were then wanting, or dimly comprehended. The sacred- 
 ness of life, the dignity of laljour, the toleration, the far- 
 reaching philanthropy and Christian piety, the abhorrence 
 of violence, the sensitiveness to dictation, tlie diffusion and 
 interchange of thought and opinion, the readiness to con- 
 sult and to allow a voice and deference to each interest 
 concerned, the security and harmonious movements of the 
 vast populations of the present day — all point to different 
 springs of action, different objects of life, different standards 
 and estimates, different hopes and destinies. 
 
 The ancients were misled by the practices going on 
 around them into thinking, that the end and object of law 
 was to enforce the practice of all the virtues, according to 
 their notions of the virtues. Whether the law was moulded 
 in this way by the people and by their tendencies, or the 
 people were moulded by the law — which was the cause, or 
 which the consequence — a false orbit had been assigned to 
 it. The ancients started with the unquestioned axiom, that 
 all mankind are divided into two classes by an immutable 
 distinction of freemen and slaves ; and this alone w^as suf- 
 ficient to deranoe all the other rules and maxims. Their 
 false gods confused the relations of human and divine. 
 The consuming passion to fight and extinguish their enemies, 
 and make this the glory and chief end of life, obscured all 
 other employments. Their views as to marriage, and all 
 that led to and flowed from it, were loose and arbitrary. 
 Their dealings with the poor, the oppressed, tlie prisoner, 
 and the captive, were pre-eminently marked, at the very 
 least, by want of thought. Liberty of speech was some- 
 what understood, but toleration, especially in religious 
 belief, was unknown, and the mechanical appliances for 
 that sublimation of free thought, known as the liberty of 
 the press, were altogethc^r wanting. Violence and arbitrary 
 imprisonment were without adequate check, and security 
 was but a dream. Trial by jury, incorruptible judges, rules 
 of evidence and jirocedure, did not throw their ramparts 
 round the essential functions of life and property. That 
 share in the machinery of government and legislation,
 
 CH. I.] MISTAKES OF ANCIENT LAW& 23 
 
 which ministers to iis all the enthusiasm and excitement of 
 war, was then feebly attained. The maxims as to taxa- 
 tion and liabeas corpus did not stir their passions like a 
 trumpet. They sought to dragoon people into virtue by 
 vexatious restrictions as to what they were to eat and 
 drink, whom they were to entertain, what they were to 
 spend, how they were to dress when living, and how they 
 were to be Ijuried wlien dead. They can scarcely be blamed 
 indeed for other tilings still obscure, as, for example, for not 
 appreciating the true principles and bearings of imports 
 and exports, supply and demand, for these still perplex 
 enlightened nations of the present day.'^ 
 
 Their sumptuary laws, their persecuting laws, their savage 
 punishments, their arbitrary maxims of government, were 
 imitated and acted on by all Em^opean nations till near the 
 eighteenth century, and in some cases much later. Even 
 the insight of Bacon did not save him from following the 
 crowd in thinking these laws necessary.- In England the 
 statutes of apparel, of labourers, of provisions, of conformity 
 were the natural sequence and development of tlie old ideas 
 of legislation hitherto too blindly and unconsciously followed. 
 From all these we have been gradually working backwards, 
 and emancipating ourselves with painful steps and slow. 
 
 The Star Chamber, which was the lineal heir of the 
 Areopagus, acted on the ambitious principle that " no 
 wrong or injury, either public or private, can be done, but 
 that it shall be reformed or punished in due course of law."^ 
 And, though Coke thought the Star Chamber kept all 
 England quiet, its notions of wrong and injury were too 
 monstrous to be tolerated later than the seventeenth century. 
 Raymond said of the Queen's Bench, " Why is it called the 
 censor morum, if we cannot punish that which subverts all 
 morality ?"* And even Lord Mansiield, C. J., so late as 1773, 
 was found taking up and passing on the saying that " what- 
 
 1 The Cuineans were thought the most stupid people of all anti- 
 quity for not putting an import duty on corn and merchandise. 
 
 2 Bac. Ess. 15. 
 
 3 Bagg's Case (1616), 6 Coke, 182. 
 
 * 17 St. Tr. 153. Even the masterly Pym was found saying " it 
 is the end of government that virtue should be cherished, vice siip- 
 pressed." — Forster's Pym, 177. The highest way in which this can, 
 be put is, that these are some of the ends of government,
 
 24 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 ever is contra honos snores et decorum the principles of our 
 law prohibit, and tlie king's court, as the general censor and 
 guardian of tlie public manners, is bound to restrain and 
 punish." ^ But it will be found that, however Aristotelian this 
 language may sound, the fragment of truth behind it shrinks 
 in practice to very small dimensions ; and that all that 
 the courts can " punish and restrain " is trifling compared to 
 the abounding wrongs and immoralities which no laws can 
 put down, and which continually outrun all the processes 
 of all the courts known to mankind. We now boast 
 to be as tender of the lives of the lower animals as the 
 ancients were of nine-tenths of the human race. And 
 though there were noble and illustrious examples of an- 
 tique virtue, our law, as a system of doctrines and maxims, 
 seems to flow mostly from sources coming in the opposite 
 direction, and is the product of far other thoughts, ten- 
 dencies, and self-restraints. As far as the east is from the 
 west, so far are our standards of life and our familiar 
 instincts from theirs. For these reasons we may pause at 
 the definition of law bequeathed to us by the ancients, and 
 entertain a doubt as to whether from such materials as 
 theirs they could possibly'derive a product, such as we can 
 recognise and accept as a tit likeness of wdiat we now deem 
 law to be." 
 
 Objections to current standard dcjinition of law. — There are 
 two radical objections to the standard definition of law 
 already referred to. The first is, that law cannot correctly 
 be said to prescribe or command a course of conduct at all. 
 The second objection is, that there is no indication given of 
 
 1 Jones V. Randall, Lofft 385. 
 
 2 "The ancients devoted their attention more exclusively to the 
 harmonious development of the individual man as man. The 
 moderns are cMefly solicitous about his comfort, his prosperity, his 
 j)r()ductiveness. The former looked to virtue : the latter seek for 
 lia])piness." — Humltoli/l's SpJiere of Gov. Introd. 
 
 It is singular that a veteran diplomatist of the age of William 
 111. should have spoken of the ancient institutions in the follow- 
 ing extravagant terms, however worthy of one of the champions 
 in the "Battle of the Books:" "The ancient political institutions 
 show such a reach of thought, such a depth of wisdom, and such 
 foi'ce of genius, as the presumption and ilattery itself of our age 
 will hardly pretend to parallel by any of our modern civil institu- 
 tions."—! Temi)le W. 4'J8.
 
 CH. I.] LAW NOT A COURSE OF CONDUCT. 25 
 
 the supposed object, which the supreme power has in view 
 in making the law. 
 
 Law docs not prescribe a course of conduct. — To say that 
 the law lays down or commands a rule or course of con- 
 duct is to say, that the law gives positive directions as 
 to almost everything that man does or ought to do, at 
 least as between man and man, A course of conduct 
 includes the great bulk of man's actions — his habitual 
 actions, not his occasional acts — his motives at eacli stage, 
 and the manner of following these out. And this must 
 be taken to be true of each individual, for the law speaks 
 not to, a few, but to all and to each. 
 
 But when one considers for a moment the vast variety of 
 things that man undertakes, or is obliged to do — the inlinite 
 details of business that pass before him, and the various 
 motives that actuate him — how can it be said with truth 
 that the law commands a course of conduct ? The phrase 
 expresses too much or too little. A course of conduct includes 
 all the thoughts, words, and actions of the day ; but to give 
 detailed specific directions, even to one individual, as to what 
 lie shall think, say, and do, when he shall turn to the right 
 hand, and when to the left hand— when he shall speak, and 
 when he shall be silent — would fill thousands of volumes. 
 If it be said that a course of conduct does not mean all the 
 minute details of each person's conduct, but only the leading 
 outline, still the same objection recurs, for this qualification 
 would only reduce to a tithe, or a hundredth, or a thou- 
 sandth part of its bulk the vast body of details, which each 
 individual would still require in order to learn even the 
 outlines of his course of conduct. The world indeed could 
 scarcely hold the volumes that such an undertaking of the 
 law would require to be written. The definition of law 
 which describes it as prescribing a course of conduct is thus 
 obviously incorrect. The truth is rather the reverse. The 
 law cares very little indeed as to the course of any man's 
 conduct ; it neither undertakes to teach him, nor does it 
 profess to know what his course of conduct is or ought to be. 
 It prescribes nothing positive at all in the principal heads ; 
 what it says is only negative. It does not command ; it 
 only prohibits. It gives no positive directions either of 
 morality, religion, justice, or good feeling. It merely 
 restrains the actions of individuals in a few out of the
 
 26 ON THE LIBERTY OF THE SUBJECT. [jntro. 
 
 variety of his occupations, and points out a formal mode of 
 carrying out a few others. The law finds man in possession 
 of appetites, passions, desires,^tendencies, which seek their 
 several objects in an infinite variety of ways, and over a 
 boundless area. And it is only a very small and insigni- 
 ficant part of the actions done in pursuit of these objects, 
 that the laM^ cares to know or concerns itself about. All 
 that the law does in its substantive provisions is to restrain. 
 It commands nothing except in the subsidiary maclnnery. 
 It restrains only a few things. Like the good demon that 
 attended Socrates, it may prevent one going wrong, but 
 cainiot prompt one to do right It does not teach a man 
 what to do, but only what to avoid, or how to accomplish a 
 few things in a formal way. It does not supply the motive 
 power or dictate the course of the journey : it only erects 
 a finger-post here and there. To say then that the law 
 prescribes or enforces a course of conduct, is as nearly as 
 possible the converse of what it professes to do. An indi- 
 vidual may do all that the law requires, or rather avoid all 
 that the law prohibits, and yet if he knew nothing but what 
 the law told him, he could scarcely survive a week. The 
 great majority of the actions of each individual proceed from 
 motives far beyond the reach of the law, and such as the 
 law can neither give nor take away. The definition of law 
 by Blackstone and Austin surveys the law from the wrong 
 side. 
 
 Another objection to current definition — it assigns no specific 
 imrpose to Jmv. — Another radical objection to the current 
 definition of law is, that such definition does not indicate at 
 all what is tlie great and essential object which all laws 
 propose, or rather which the legislature proposes to accom- 
 pHsh by and through such laws. It is one thing to command 
 without reasons given, and another thing to command with 
 reasons given — one tiling to conquer the will, and another 
 thing to lead captive tlie reason. Blind and passive obe- 
 dience is only for slaves. Laws in a civilised community 
 are addressed to human beings endowed Avith reason, 
 conscious of freedom and power, and the pleasures of 
 discretion and choice, having the capacity to reflect, to 
 judge, and to feel. The virtue of laws now depends almost 
 entirely on the assent and consent with which those to 
 whom they are addressed discern and confess their necessity,
 
 CH. I.] NEW DEFINITION OF LAW. 27 
 
 and appreciate their full measure and tendency. It may 
 be difficult, if not impossible, to explain many obscurities 
 as to the origin, necessity, and final cause of all laws. 
 None of the great thinkers of the world has yet succeeded 
 in defining their tendency, scope, and ultimate destination, 
 or to lay down any settled rules as to the bounds of their 
 interference with the pursuits of individuals or classes of 
 men. But in this inquiry two things are to be distinguished. 
 All laws may have one generic object, and yet there may 
 be various ways of accomplishing that object, both as 
 regards the sul)ject-matter to be affected and the mode of 
 affecting that subject-matter. The aim may be one and 
 indivisible, and the ways of reaching it manifold. It may 
 be possible to define the former, and not the latter. But 
 the current definition states neither. What the course of 
 conduct enforced by the supreme power relates to — what 
 object is to Ije attained thereb}', or why it is to be attained, 
 is not stated. The definition merely speaks of something 
 being enforced — it speaks of a blind obedience, without 
 indicating why that obedience is exacted, what good it is 
 to do, and what length it goes or ought to go ; and in this 
 vital, essential element the current definition of law is 
 conspicuously defective. 
 
 A new definition of nuinici^yal laiv. — These two radical 
 objections to the current definition of law naturally give 
 rise to the demand for one that will be free from such 
 objections, if, indeed, any such can be found. Such a 
 definition seems to be this : — " Law is the sum of the varied 
 " restrictions on the actions of each individual, which the 
 " supreme power of the state enforces, in order that all its 
 " members may follow their occupations with greater 
 " security." 
 
 This definition, instead of representing the body of law 
 as consisting of a course of conduct, confines the attention 
 to the more limited purpose of controlling some only of 
 the actions of men, either directly by restraining these, 
 or indirectly by defining forms for giving greater effect to 
 them, and that not entirely by way of positive command, 
 but mainly by way of negative prohibition. It also 
 points to the general purpose kept in view by the supreme 
 legislative power. It does not indeed necessarily imply 
 that that purpose is secured by the right means. It merely
 
 28 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 states the object which is always professed, or is that 
 which alone can be legitimately professed. The object 
 may not be in fact attained, or it may be attained or 
 sought to be attained by the WTong means. The means, 
 however, which are used, and the subject-matter as to 
 which restrictions are imposed, cannot be exactly stated 
 or even indicated, for the simple reason that no human 
 sagacity or acuteness has yet defined how far these 
 restrictions may or ought to go in the further development 
 of modern civilisation. It is the main business of politics 
 to discuss and find a solution for eacli particular exigency. 
 It is enough that the law proposes well, and does its best 
 for the time being to decide what will most effectively 
 secure the general good. 
 
 In order, however, to explain fully this definition, it will 
 be necessary to examine more minutely its several parts. 
 
 Law is a oxstriction on human actions. — That law is the 
 sum of the varied restrictions upon the actions of each 
 individual, is the fundamental conception iniderlying its 
 whole structure. Those writers who define law to be a 
 course of action or of conduct lose sight of the manifest 
 truth, that while the course of conduct consists of the 
 whole acts and deeds of men, these spring from so many 
 sources, that it would be idle to say that the law directed 
 them, or even a thousandth part of them. Those sources 
 are far too deep and subtle for any law to intercept or 
 suppress, to guide, or even to watch. Men would go on 
 satisfying their hunger, gratifying their feelings, desires, and 
 passions, amassing and squandering property, bargaining, 
 quarrelling, and domineering over each other, just the 
 same if there were no laws at alL And though the par- 
 ticular details of the law, when such are enacted, influence 
 greatly the general happiness, yet this good is not effected 
 by any radical or material change which they produce in 
 the conduct of men. The mass of men's actions remains 
 the same whatever the laws may be. It is only in the 
 slcill with which one restriction is directed here and 
 another there, and in the skill with which the superficial 
 tendencies of human actions are balanced and played off 
 one against another, that the total result becomes bene- 
 ficiah That result moreover is the fruit of reason and 
 reflection, and does not immediately flow from anything
 
 CH. I.] LAW IS A RESTRICTION. 29 
 
 the law can do. The law affects human conduct by and 
 through the reason. To trace all the secret springs wliich 
 render law suitable to the circumstances of a people, and 
 which invigorate instead of harassing their multifarious 
 energies and occupations, lias been the theme of many 
 dis(i^uisitions of curious inquirers. It is, however, too 
 remote from our business, and it may be left in the hands 
 of the legislators, whose occupation it is to discover what 
 would be good laws and what would be bad laws before it 
 is resolved to enact them, or what to preserve and what to 
 amend of those that have already been enacted. It may 
 for our present purpose be assumed that each individual 
 carries within his own breast some standard, by which he 
 can readily appraise their value and test by experience 
 what is just and what is unjust. Mankind have, as 
 Cicero observed, a genius for law. The vast populations 
 of to-day are controlled by very few courts and judges. 
 They gravitate towards law as if towards the inevitable. 
 The common sense of mankind is thus often a better gauge 
 than all the theories of the learned or the decrees of the 
 powerfid, as to where the law should begin and where it 
 should end. But whether a law is good or bad, it acts 
 mainly by way of restriction on some of the tendencies of 
 men. The law prohibits each individual from murdering 
 or assaulting or imprisoning his neighbour, from seizing 
 another's property, from marrying certain persons, or more 
 than one at a time, from breaking his contract, from 
 slandering another's character, from interfering with 
 another's mode of worship.^ But it cannot be supposed 
 
 1 " Laws, whether founded on a right or a wrong' exercise of reason, 
 are always intended to act as restraints on the actions of indiviihials 
 and to interfere with the motives by which their conduct woukl be 
 otherwise determined. This restraint mayJbe said to be artificial, as 
 opposed to the natural restraints of the individual reason : and this 
 perhaps is the distinction most generally intended when the natural 
 conduct of men is contrasted with their conduct under the control 
 of positive institutions. But as the motives which determine indi- 
 vidual conduct are not always reasonable motives, so it is clear 
 that what men naturally do is no sure test either of what they 
 ought to do, or of what they ought to be allowed to do. It is their 
 nature inider certain conditions to do all that is bad and injurious to 
 themselves and others. Hence it is the most difficult of all problem < 
 in the science of government to determine, when, where, and how i : 
 is wise to interfere by the authority of law with the motives whiclt
 
 30 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 that it is the law that creates just enough of motive and 
 jDassion to lead to each lawful human action, or that if 
 there were no law, all those motives and passions 
 would be extinguished. On the contrary, all that is 
 positive in the motives and tendencies existed before law 
 began, and will outlive all the changes that the law will 
 ever cause. The law confronts the irrepressible instincts 
 and tendencies, and confesses that it can cope with them 
 only circuitousl}' through the medium of the understanding. 
 It merely prunes the exuberant foliage, docks the towering 
 branches, guides the roots to the one side or the other. 
 The roots, the trunk, and the branches flourish as before ; 
 the individual identity continues, though the motive power 
 and the intricate organisation are prevented from being 
 mischievous to society. 
 
 The source of much of the confusion on this subject is 
 traceable to Aristotle, who thought that law positively 
 
 are usually called the natural motives of men. The question is no 
 other than this — How far the abuse of those motives can be checked 
 and resisted by that public authority whose duty and function it is 
 to place itself above the influences which in individual men over- 
 power the voice of reason and of conscience." — D. of Argyirs lieign 
 of Laid, 86G (3rd ed.). 
 
 Adam Smith says: "Mere justice is upon most occasions but a 
 negative virtue, and only hinders us from hurting our neighbours. 
 We may often fulfil all the rules of justice by sitting still and doing 
 wAhms::'— Smith's Theorij, p. 2, § 2. 
 
 Dr. Johnson also had a clear notion of this truth. He said : " The 
 primary notion of law is restraint in the exercise of natural right." 
 1 Boi)w. Johns. 38. And again : " Political liberty is good only so 
 far as it produces private liberty."— 3 Bosw. Johns. 53. 
 
 Bentham says the principal function of government is to protect 
 individuals from suifering. — 1 Benth. W. 301. 
 
 GuizoT says a civil government in its code comprehends only those 
 actions morally culpable and socially dangerous. — Guizot Civ. Eur. 
 Lee. 15. 
 
 Windham (H.C. 1809, 14 Pari. Deb. J 031) said " Laws were almost 
 universally restrictive. They restrained acts whicii were injurious 
 to the community, and were such, moreover, as could be defined." 
 
 The same idea is noticed by St. Paul : " The law was not made 
 for the righteous, but for the unruly and the disobedient." — 1 Tim. 
 i. 9 ; Pet. 1. ii. 9. 
 
 De Lolme was surprised in his keen researches at not finding any 
 English statute enacting the liberty of the press, till he began at last 
 to refiect that it existed simply because it was not forbidden. — De 
 Lolme on the Const.
 
 cir. 1.] LAW GIVES FORMS OF RESTRICTIONS. 31 
 
 prescribed all the virtues. He says : " The law directs the 
 performance of brave acts, such as standing at one's post, 
 neither fleeing nor throwing away one's arms — also acts of 
 temperance, such as not committing adultery or violence — 
 also acts of moderation, as neither assaulting nor abusing 
 others. And in like manner with the virtues and vices, it 
 enjoins one class of actions and forbids others. As the 
 proverb says, In justice all virtue is comprehended." ^ He 
 also says, "Whatever the law does not command it for- 
 bids.'"-^ The Eoman maxim was the reverse, and nearer 
 the truth, namely, thtit what the law does not forbid it 
 permits. The correct maxim, however, is, that, what the 
 law does not forbid, it leaves each to do or not to do as 
 he pleases, and altogether declines to know or care any- 
 thing about the decision he may come to.^ 
 
 Laiv includes forms for giving effect to some human 
 actions. — But in defining all laws as in the nature of 
 restrictions, there is still something to be added. A distinc- 
 tion is necessary between those laws which are primary 
 and those which are secondary and subsiditiry. Some 
 laws are merely modes of carrying out the principle 
 contained in otlier laws. The principle is always to be 
 distinguished from the machinery necessary to work it 
 out. A survey of the laws discloses, that a partial 
 restriction only is imposed in many cases, and that an 
 exception is allowed, which is declared to be the only legal 
 mode of giving effect to the human tendency restrained. 
 For example, when it is once determined to restrain the 
 tendency to marry, it is found not to be enough to prohibit 
 marriage with certain individuals, but a form is given by 
 which marriage, even when not prohibited, is to be carried 
 out, in order to define with greater certainty who are and 
 
 1 Arist. Eth. b. V. cli. i., § 11, 12. ^ Ibid. b. v. ch. xi. 
 
 3 " The ancient conanonwealths and philosophers countenanced the 
 regulation of every part of private conduct by pubHc autiiority, on 
 the ground that the state had a deep interest in the whole bodily 
 and mental discipline of every one of its citizens — a mode of think- 
 ing whicli may have been admissible in small republics, surrounded 
 by powerful enemies, in constant peril of being subverted by foreign 
 attack or internal conunotion, and to which even a short interval of 
 relaxed energy and self-command might so easily be fatal, that they 
 could not afford to wait for the salutary permanent effects of 
 freedom."—/. S Mill, On Lib. 23.
 
 32 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 who are not married, as a guide to those whom siicJi 
 knowledge affects in one way or another. While buying 
 and selling, giving and bequeathing, are prohibited in 
 some cases altogether, it is yet found expedient to provide 
 a form, or something approaching a form, according to 
 which certain contracts, wills, and solemn acts, which are 
 not otherwise interfered with, must be carried out, before 
 the law will regard these as effective and binding. More- 
 over, in those parts of the law which will be found to be 
 subsidiary, and to consist merely in machinery for giving 
 effect to the primary laws, such parts consist of forms 
 which must be followed in order to attain more quickly 
 and easily certain objects. Thus in the departments of 
 legislative, judicial, and executive law many of the details 
 consist of formal steps for passing new laws, for electing 
 members of the legislature, for executing sentences and 
 orders of courts of law. The forms thus incorporated 
 into the law are the only parts which can be correctly 
 described as positive law. They are, at most, a small part 
 of the law, and are more or less subordinate and auxiliary 
 to the primary or substantive laws, all of which, as already 
 stated, are merely restrictions on the acts of man, and 
 the forms themselves are only another name for restrictions, 
 for without them mankind would choose many concurfeut 
 ways to the same end. 
 
 Part of definition — that law is enforced by the sui^reme 
 ■power of the state. — The laws consist not merely of restric- 
 tions, but it is an essential characteristic, tiiat these should be 
 enforced by the supreme power of the state. Who or what 
 then is the supreme power of the state ? If one surveys! 
 mankind from China to Peru, it will be obvious that the 
 supreme power of a state assumes various forms. There 
 may be a republic, or there may be a monarchy, or some of 
 the many intermediate organisations made up of various 
 elements common to both ; and the permutations of these ele- 
 ments are so various that the resultant force can scarcely 
 be described, except by comparing and contrasting the 
 leading characteristics of other like forces. Whatever be the 
 structure composed out of so many materials, the supreme 
 power is only a synonym for that human voice which 
 cannot ])e resisted by any one individual or by any minor 
 combination of them short of the majority ; for whenever
 
 en. I.] WHAT IS THE SUPEEME POWER ? 33 
 
 one resists it, all the other individuals readily comLine 
 consciously or unconsciously to uphold it. Each indi- 
 vidual is thus crushed in detail, and the aggregate power 
 of all the individuals who live in one community thus 
 becomes a continuous, and it may be indefinable, source of 
 power, Avhicli carries all before it. An irresistible power, 
 reigning absolute over all the individuals in the state, must 
 arrogate or exercise all the means of enforcing; or com- 
 polling each individual to act — so far at least as any 
 one can be said to be compellable by the superior force 
 of all the rest. When a number of individuals within a 
 defined area are all living subject to and ackuowledgin-'- 
 one common law, wdiich is the emanation of one supreme 
 power, or is adopted by it — when such laws are mado 
 without the dictation of any persons living without the 
 area — when all the difficulties that can arise between the 
 individuals are solved by means found within the same 
 area and irrespectively of any power or dominion else- 
 where — then all may be said to be living in one separate 
 and independent self-governing state. The supreme power 
 is merely the organ of the entirety of individuals so living 
 together, and it is of necessity designed and known to be 
 irresistible and inevitable.^ Life in society is impossible 
 without such mutual relations and such a common bond. 
 Each individual must obey such laws whatever they may 
 be. That there must be a supreme power in every state 
 or in every self-dependent community, is an axiom which 
 cannot be explained, but which must nevertheless be 
 assumed. The whole current and complexion of human 
 faculties and tendencies lead irresistibly to this settled 
 condition of social life. All human affairs gravitate to it. 
 Even in the rudest forms of states, there is a similar power, 
 whether lodged in the patriarch or the elders of the tribe, 
 and it is usually found to assume by turns a legislative, a 
 judicial, and an executive phase. AH men, consciously or 
 unconsciously, restrain themselves in presence of it and 
 accept its arbitrament as final and irreversible. Whenever 
 
 1 Austin defines a sovereign to be " a determinate human superior 
 not in the habit of obedience to a like superior who receives habitual 
 obedience from the bulk of a given society, and such society is 
 dee lied a political and independent society, an<l their mutual rela- 
 tion is that of sovereign and subject." — 1 Aunt. Jar. 17U. 
 
 VOL. I. D
 
 34 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 two or three individuals are gathered together in circum- 
 stances, however isolated and alDuormal, the relation of 
 superior and subject is evolved. Submission or war 
 to the knife is the substratum of all human companion- 
 ships. Such an alternative as this always presents itself 
 to each, and confronts him at all the leading^ turns. As 
 man, however, has a genius for law, he seldom hesitates 
 to submit to a governor. There is nothing irksome in 
 his homage, which is as natural as it is nseful. In 
 more complex conditions this sovereign power may be 
 distributed among several individuals according to nice 
 and delicate gradations. But whatever be its form, and 
 whencesoever traced, and by whomsoever assumed or 
 usurped, it is able and ready to enforce its will. For 
 every lord who strikes the earth with his foot, a thousand 
 willing vassals start up. Which is the cause and Avhich 
 is the consequence, no philosopher has yet been able to 
 discover. The relation of governor and governed is a 
 ready-made constituent of human life.^ The governor is 
 irresistible, and all men are born to accommodate them- 
 selves to the irresistible ; the governed are sanguine and 
 faithful, and all men admit that they are the better for 
 being governed, even if the governor is irresistible and 
 peremptory. It is only after long familiarity, that each 
 ■of these classes begins to reflect why the other A^-as made, 
 and whether that other could not be improved. 
 
 Part of definition, that lav:s must he enforced, and Jiow. 
 -^But when a supreme power has been found in the 
 
 1 Aristotle remarked that by nature some beings command and 
 others obey for the sake of mutual safety, for a being endowed with 
 discernment and forethought is by nature the superior and governor. 
 — Arist. Pol. b. i. ch. ii. Tliis seems the same idea as was after- 
 wards repeated by Cicero, that man has a genius for Law. 
 
 PoMPEY said he had only to stamp the ground of Italy, and an army 
 would appear. — Pint. Pomp. 
 
 It requires only a few courts and judges to dispose of all the 
 litigation of millions of people ; and if a handful of men were 
 perversely to do the reverse of what the majority do almost instinc- 
 tively, tliese men could give full occupation to all the courts of the 
 country in disposing of the business they alone could thereby create. 
 
 If the idea o£ the ancients that law connnands a course of action 
 were efficiently and thoroughly acted on, half of the human race 
 would require to be judges and bailiffs.
 
 cu. I.] HOW LAW IS ENFORCED. 35 
 
 state able and ready to enforce the law, it is next necessary 
 to explain what is meant by this " enforcing of the law." 
 It is unnecessary to enter into the subtle and recondite 
 inquiries as to the nature and operations of the will. It 
 is enougli for all practical purposes to assume and know 
 that the law is addressed to tlie reason, and seeks to in- 
 fluence human actions solely by and through the will— and 
 by presenting an alternative by way of sanction to each 
 prohibited act. Such alternative is not intended as an 
 end, but solely as a means. It is so contrived as, in the 
 minds of the great majority, to overbalance its counter- 
 weight. The fear of worse is that which reacts on the 
 mind, and so induces the act which the law approves.^ It 
 is a sanction rather than a selected alternative, because the 
 supreme power is by no means indifferent which of the two 
 alternatives shall be chosen. On the contrary, the one is 
 intended to be chosen, and the other is put forward as that 
 which the law dislikes, and only presents as an unwelcome 
 substitute. The mode in which the alternative or sanction 
 influences the will is by causing pain to the body or pain 
 to the mind. The pain to the body consists of imprisoning, 
 beating, or killing it. Pain to the mind consists of forcibly 
 depriving the individual of part of his property. Conjoined 
 Mi til both is the degradation which society instinctively 
 associates with disobedience to the irresistible. Thus 
 when the law declares that a man shall not murder, or 
 steal, or commit perjury, there is no physical barrier 
 created to his committing these acts so restrained. On 
 the contrary, he has it in his power to commit them, but 
 as reason teaches him that the inevitable consequence will 
 be some punishment to the body or mind, his intelligence, 
 fortified by other instincts, leads him to avoid what he is 
 inclined to as the only way of not being subjected to the 
 punishment. "When he so makes his choice, the object of 
 the law is achieved. Again, when one man owes another 
 money, he is not physically compelled to pay it, but if he 
 do not pay voluntarily, he knows that his propeity will be 
 
 1 Gundling in tlic beginning', and Adam Smith in tlie latter half, of 
 the eighteenth century, prominently bronglit out tliis characteristic 
 of the law, that it comprised those virtues only which were enforced, 
 or the violation of which was visited with some kind of external 
 
 suffering. 
 
 D 2
 
 36 ON THE LIBERTY OF THE SUBJECT. [lntro. 
 
 taken from him compulsorily, in order to bring about 
 circiiitously the result he is not inclined to. The fore- 
 knowledge of this disagreeable seizure of his property 
 overcomes his reluctance to do what is desired, and when 
 he makes his election and pays the debt, the law has 
 achieved all it professes or expects.^ 
 
 Such IS the effect produced on the will of each individual 
 by the law. The law does not attempt to enforce specific 
 physical performance of any legal duty or obligation. It 
 merely addresses to the understanding of each individual, 
 who fails to perform what is expected, the admonition, that 
 a disagreeable alternative is ready to overtake him ; and the 
 knowledge of this inevitable sequel is that, which by 
 reflex influence induces the individual to do what the 
 law requires. This species of reflex influence is all that 
 is meant by saying that the law enforces the restriction, 
 and shuts out some act to which the individual may 
 otherwise be prone. More tlian thus appealing to the 
 reason and presenting an alternative the law cannot do."^ 
 
 ^ " There arc in the mind of man, as there are in natine, certain 
 forces originally implanted which are unchangeable in this sense, 
 that they have an invariable tendency to determine conduct in a 
 particular direction. But as in nature we have a power of command- 
 ing her elementary forces by the methods of adjustment, so in the 
 realm of mind we can operate on the same principle by setting one 
 motive to counteract another ; and by combination among many 
 motives we can influence in a degree, and to an extent as yet un- 
 known, the conduct and the condition of mankind." — D. of Anjijll's 
 Reiqn of Law, 408 (3rd ed.). 
 
 GuizoT also says: " It is the true nature of government to manage 
 with dexterity, and to conciliate all the interests and forces of society. 
 The essence of liberty is the simultaneous manifestation of all in- 
 terests, of all rights, of all forces, and of all social elements." — Guizot, 
 Civ. Eur. Led. 14. 
 
 2 Sir H. S. Maine, in his " Village Connnunities," suggests that that 
 part of the current definition of law importing that every law must 
 liave a sancUc)n, or be capable of being enforced, fails in its appli- 
 cation to the village connnunities of the East, where nothing analo- 
 gous can be traced. But it seems a sdfFicient answer to say that 
 custom or usage, however loose, is the law of barbarians. If any 
 one of the tribe were to deviate from the current usage, the rest of 
 the tribe would expressly or iniiiliedly meet and pass sentence on 
 tlic innovator, and without formal trial, would with one consent spear 
 or drown, or otherwise dispose of him. In so acting' they annex a 
 sanction or conanand to each custom quite as effectually as if the 
 punishment for disobedience were written in acode. Birds and various
 
 en. 1.] now LAW IS ENFORCED. 37 
 
 There is and can be no specific performance of legal duties 
 except in a vague and figurative sense. The individual 
 may be guided, as a horse may be led to the water to drink, 
 but it requires something over and above what the law can 
 directly reach to give the finishing touch. All the artillery 
 of the greatest empire in the world, with its whole fire 
 concentrated to one unerring doom, cannot make its 
 meanest peasant say yes or no. His body may be shattered 
 and annihilated, but there is still something that cannot 
 be conquered. This consciousness of the Hmited power of 
 the law is that which teaches, that, in order that laws may 
 be obeyed, they m.ust be addressed to the reason and must 
 command the assent of all reasonable minds, otherwise an 
 interminable warfare and an endless harassing of human 
 life will rage to the end of time, and never be appeased.^ 
 
 animals have been noticed in the pame way to dispose of " advanced 
 thinkers." Storks liave been observed to hold councils of war, and 
 inflict capital pnnislinient on one of the company for some mysterious 
 offence. — Lee's Anecd. of Birch, 190. 
 
 ^ Much of the history of the law consists of a series ef mistakes 
 made by legislators of all ages as to the things they have tried to 
 compel people to do ; and the last hundred years seem to have been 
 occupied in the discovery of the mistakes thereby made, and the 
 successive efforts to retreat from false positions, and occupy new 
 positions. 
 
 i\Iodern legislatures now acquiesce in the conclusion, that most of 
 the old tasks were impossible, which sought to compel absolute uni- 
 formity of thought, of manners, of habits, of social life, of belief, 
 of hiring, of prices, of dress. The attempt to rivet these fetters on 
 tlic mind, besides being abortive, occupied too much of the time of 
 the courts, and required too many frivolous and purposeless inquiries 
 and failed to withstand the ridicule of the times. 
 
 A statute of Henry VllL went the length of enacting that " all 
 things that concern Almighty God and His religion, ordained by the 
 archbishops, bishops, and doctors, should be fully believed, obeyed, 
 observed, and perJ'ormed on pains and penalties as if set forth in the 
 act."— 32 Hen. VHL c. 2G. 
 
 The Court of Chancery used for centuries to imprison persons for 
 not doing some specific act, as executing a deed, putting in an answer, 
 &c., whereas it might have been seen how impotent was the attempt 
 to concuss the mind, and that the court had simply to do the thing 
 itself, or order the suit to proceed as if the thing required was done, 
 and the whole difficulty of trying to comp>el the impossible would be 
 avoided. It was not till 1830 that a bill was brought in to abolish 
 this purposeless and indiscriminate imprisonment. — 22 Pari. Deb. 
 (2nd) 375. 
 
 So late as 1750, the most powerful court in tlie world, the
 
 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 And most of the governments of the world, after centuries 
 of experience, have been made to learn, that laws are made 
 for tlie benefit of the governed as well as of the governors — 
 and obviously rather more for the benefit of the governed, 
 because they are the more numerous, unless, indeed, all 
 can agree to arrange themselves upon one level, and 
 acknowledge the absolute supremacy of the law without 
 distinction of ranks or mutual relations. 
 
 Easiest mode of enforcing laio is to alloiv the subject to 
 share in malcing lavj. — Most nations, after exhausting 
 other plans, must sooner or later discover that the surest 
 way to secure ready obedience to the law is to provide 
 means whereby each individual subject can take a part 
 more or less direct in framing and devising the law^s he 
 is to obey, for obedience to self-made laws is easy and 
 pleasant, and is congenial to all men in all circumstances 
 and ages. A law, however wise or prudent, if made by 
 one or many acting without consent, consultation, or co- 
 operation of the individual subjects to be governed, has 
 and w^ill always have a certain bitterness altogether irre- 
 spective of its merits ; and this bitterness recurs, and will 
 recur while society exists. But when laws are the fruit 
 of choice and deliberation, and the joint labour of the 
 
 House of Commons, was apparently irritated and dismayed at tlie 
 discovery, that it could not compel a prisoner at its bar to do so simple 
 II thing as bend his knee and confess his fault if he was minded not 
 to do so. And as all the threats of power were wasted on one 
 prisoner in vain, the House at last admitted its inability to achieve 
 the impossible, and contented itself with imprisoning the refractory 
 culprit a little longer, and then discharging him. — B.e Murray, 14 
 Pari. Hist. 894. At the same time the House resolved in future not 
 to insist on a condition so easily baftled. And the House of Lords 
 in hke manner has confessed the impossibility of enforcing this 
 einii)le act of kneeling from prisoners at its bar, and no longer 
 insists on it.- — May's Pari. Pr. 110. In Holland it was said to 
 be once the law, that if the criminal would not admit the justice 
 of his sentence lie was pressed to death. — 14 Pari. Hist. 10C6. 
 Tiiat practice was no worse than our own law, which was not 
 repealed till 1772, by which a prisoner who stood nr.ute on being 
 arraigned, and would neither plead guilty nor not guilty, was pressed 
 to death.— 12 Geo. III. c. 20 ; 7 & 8 Ceo. IV. 0.^^27, § 2. ^cQpost, 
 ch, vii. 
 
 'Jlie legislature has, from similar views, at last ceased to regulate 
 the details of private lil'e by suni])tuary laws, has ceased to regulate 
 literature by a censorship, and religion by an inquisition.
 
 CH. I.] WHAT IS THE OBJECT OF LAW ? 39 
 
 governed and the governor, and approach the most nearly 
 to self-made laws on both sides — as all laws do which 
 proceed from a legislature to wliich the subjects send 
 representatives — this partnership of feeling and of self- 
 interest engages all the prejudices of human nature in its 
 service, and thereby draws after it a willing obedience, and 
 the greatest triumph of civilisation is thereby completely 
 achieved.^ 
 
 Tlie object of latv is, that all individuals may follovj 
 their occiqjations iviih greater security. — It seems at first 
 sight singular, that after the vast experience of mankind 
 in making, unmaking, altering, amending, and rewriting 
 laws, one cannot easily arrive at some definite conclusion 
 as to what the object of all laws is— what they propose to 
 do, and by what means. Yet it is here that the greatest 
 difficulty arises. If all were agreed as to the precise 
 object and the precise means which the law pursues, there 
 would scarcely be room for the mistakes that are made — 
 the heats and dissensions — the evil predictions — the threats, 
 the denunciations — the party conflicts — the false aims, the 
 false steps — the happy strokes, the disastrous blunders, tl:ut 
 preside in turn over the birth and alteration of most laws. 
 The great writers and thinkers have not been at one in 
 this point. They have put forth many theories to cover 
 the obscure, and to make less dark that which was already 
 dark. They say that the object of law is to promote 
 the general happiness — to promote the virtues of fortitude 
 and temperance — to pursue justice — the general good — 
 whatever is right — to obey the will of God— to do to others 
 as we would they should do to us — to give to everyone 
 his due and hurt nobody — to protect property— to protect 
 
 1 ERSKiNEsaid "the people should be taught that government is a 
 trust proceeding from themselves — an emanation from their own 
 strength— a benefit and a blessing, which has stood the test of ages, 
 that fhey are governed because they desire to be governed, and yield 
 a voluntary obedience to the laws because the laws protect them in 
 the liberties they en]oy. "—Ersk. Speeches. 
 
 GuizoT says : '' The highest perfection of government is to avoid 
 compulsion, and substitute for it purely moral means— aii influence 
 over the understanding. Therefore that government, in which com- 
 pulsion is least employed, is that which is most conforjnable to its 
 true nature, and most completely fulfils its duties."— (th/so<, Cio. Eur. 
 Lect. 5.
 
 40 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 nil from injury — to promote the self-interest of each — the 
 greatest happiness of the greatest number — the good order 
 of society — the punishment of wickedness — the just re- 
 lations existiuo- between various classes — the eternal fitness 
 of tilings. 
 
 Phrases such as these may contain much that is true, and 
 yet express too much or too little. They are manifestly 
 vafTue, and more obscure than the thing defined. One 
 requires only to take a chapter of the law in its detailed 
 form and endeavour to test it by any of these guiding 
 principles, in order to admit how impossible it is to find or 
 pursue the thread. Those seem to err most who assume that 
 it is possible to give to the law any abstract and sweeping 
 object, such as the pursuit of virtue or happiness. All 
 nations must have laws, and probably there is, or ought to 
 be, a motive and object nearly the same in all. Yet when 
 we reflect out of what crude forms the most highly-developed 
 laws of modern civilisation seem to have been evolved — how 
 entirely empirical the law has been in its progress — how new 
 rules and new ideas seem to have been little else than the 
 haphazard saws and apophthegms of some individual a little 
 wiser than his contemporaries, but whose best thoughts 
 were sufficiently appreciated to be acted upon, till a better 
 and stronger man arose who could see further- 'into the 
 future, and had newer and still better methods to suggest — 
 when all this groping by the way is considered, it is easy 
 to excuse the ancient legislators from exhibiting any well- 
 defined aim, or aspiring to too lofty a moral purpose. The 
 records of barbarous tribes seem to disclose the fact that 
 there are few germs corresuonding to our leading laws. 
 The barbaric mind is incapable of generalising, except in 
 the imperfect fashion of children. To expect savages to 
 comprehend such abstract notions as personal freedom, 
 culpable homicide, pauperism, education, wills, bills of 
 exchange, would be to expect them to speak in unknown 
 
 tongues. 
 
 If civilisation were to be traced step by step, perhaps all 
 the law at first required for each member of a tribe would 
 be found to be nothing more definite than the measure of 
 the patriarch's will. When two or more patriarclis joined 
 their families, this feeling would become a calculation of the 
 propensities displayed in conmion by two or more rulers
 
 OH. I.] OBJECT OF LAW IS SECURITY. 41 
 
 till a ruler ol rulers appeared, who claimed supreme atten- 
 tion, and set generalisation again at work. Polygamy, 
 slavery, witchcraft, protection against theft and assault 
 seem to take shape among the first settled habits, and 
 habits are the laws of barbarians; but the order of deve- 
 lopment and the particular impulse given to one habit 
 rather than another are too obscure to warrant any dogmatic 
 conclusions. The history of different races of mankind, 
 the I'easons why some seem to have for ages remained 
 stationary — some to have deteriorated or disappeared — 
 others to have outstripped the rest — and why some habits 
 afterwards become matured as doctrines of law and flourish 
 more among one race than another — why the best laws 
 when sown in some soils fall on stony ground, flourish for 
 a while, and then decay — all these mysteries furnish endless 
 speculations, and echo and re-echo along the lines of history 
 without leaving anv certain voice. 
 
 P)Ut whatever may have been the order in which law 
 arose, this much is certain, that law in some vague and 
 crude form must have always accompanied the association 
 of human beinos. These associations mav have l>een casual 
 or permanent — small in numbers or great ; but each and 
 all the individuals composing it must have had some_occu- 
 pation, even if it were the occupation of idleness, and 'each 
 must have had some sense of restraint. The two things 
 are inseparable, and the mutual complement of each other. 
 If the meniljcrs of the tribe took to liunting, or fishing, or 
 tilling the ground, or tending cattle, or exchanging goods for 
 things thought A^alualde, each of these several occupations 
 nmst have been wholly impossible without a sense of 
 mutual restraint — vague and indefinite though it might be. 
 The patriarch of his tribe could never have been sure of a 
 meal — he nmst have worked at the work of Sisyphus, if he 
 could not sleep in peace and in the consciousness, that when 
 he rose in the morning he would still remain master of 
 yesterday's acquisitions. Whatever might be the work of 
 the day, he would require to be satisfied that he had not 
 to repeat it on the morrow ; and yet, unless his companions 
 divined his wishes and abstained from peculation and all 
 interl'erence, this could never become a settled conviction. 
 The greater the number of the tribe, the greater would be 
 the need for restraints to correspond — the more urgent it
 
 42 ON THE LIBERTY OF THE SUBJECT. [ixti:o. 
 
 would be safely to guaid tlie hoard which so many hungry 
 eyes surrounded. In this sense it would he of no import- 
 ance what were the circumstances of the society or the 
 occupations of its members, for the same principles would 
 apply. All employments end in a store for the future, and 
 that little capital would require to be secured against the 
 depredations of others equally anxious to gain an invest- 
 ment, and still more anxious to do so without the trouble 
 of working for it. Tlie same circle of cares would be 
 repeated through all the succeeding stages of advancement, 
 however complicated might become the labours, the desires, 
 and the possessions of individuals. What each would seek 
 above all things would be — not to be interfered with by 
 others^ — to be let alone— to pursue his occupations to their 
 logical conclusion — to reap where he had sown — to sleep 
 behind his own ramparts — and to riot in the luxury of 
 possession. 
 
 Securit// is the end and scope of all municipal laivs. — What 
 then can be the scope and end of all laws, but simply to 
 further and render more certain and secure whatever occu- 
 pation each individual has thought fit to adopt ? The 
 less others interfere witli him, and the less he interferes 
 with others, each has more time of his own — better repose 
 and more strength — he gets in the long run more of what 
 he wants, and loses less than lie would lose, if there were 
 perpetual interference, perpetual robberies, and perpetual 
 recaptures — stratagems by night and battles by day — each 
 carrying his life in his hand, and seeing an enemy in every 
 bush. Here, then, is the true sphere of the law. The law has 
 and can have no other object than simply to secure to each 
 the utmost possible value — the widest field — the securest 
 enjoyment for his varied employments. It is this security 
 against interference, wliich makes all grades of civilisation 
 
 ' The Chinese code states that the chief ends proposed by the 
 institution of })unislinieiits in the empire have been to guard against 
 violence and injury, to rcjiress inordinate desires, and to secure the 
 peace and tranquillity of an honest and unoffending community. — 
 Staunton's Code of China, Lwii. 
 
 Not unlike this was the beginning of the written laws of the 
 Lond)ards in the edict of King Eothai-is (a.d. G44). "The object of 
 the edict was to relieve the poor from oppression, and restrain the 
 insolence of the rich and great, that every oTie might live in peace 
 and enjoy jiis property undisturbed. " — Leg, Longub.
 
 CH. 1.] LAW DOES NOT ENFOKCE VIRTUE. 43 
 
 akiu — which is the universal haven in which nations find 
 rest. There are degrees of intensit}', of dehcacy, of 
 completeness ; but it is one fundamental and indivisible 
 consciousness underlying all the A^'iriations of race, and 
 climate, and soil. The rude barbarian can appreciate it as 
 I'ully as the polished citizen. The untutored Indian, who 
 carries all his goods on his back — who finds a home under 
 every tree — who gives few hostages to fortune — enjoys a 
 sense of security against his equals as sensibly, though not 
 so intensely, as the merchant prince, whose corn, and cattle, 
 and servants are scattered over many provinces, whose 
 ships ride in every sea, and whose note of hand is sold in 
 all tlie markets of the world. 
 
 Object of law is not to enforce virtue. — If therefore law 
 be the restraint enforced in order to secure more effectually 
 to each the benefits of his own occupations, there is avoided 
 much of the vagueness and mystery surrounding those 
 definitions which give no motive at all, or identify that 
 motive with the knowledge or pursuit of what is right. 
 Tliat the law necessarily enforces what is right cannot be 
 contended, and yet that there must be some motive is 
 equally apparent. The supreme power, whether centred in 
 one person or in many, may make mistakes, and must often 
 retrace its steps. There is a conscience attending the 
 exercise of all power which requires to be educated. Not 
 only may the supreme power make mistakes, but it is con- 
 scious that its power, tliough supreme, is limited in all 
 directions. It has not the power nor the capacity to make 
 men religious or moral, though some vague conception of 
 such an attempt may have haunted most of the early 
 legislators, and has led to many mistakes in all ages. 
 What is right and what is wrong is a problem, not more 
 easy, at the same time that it is not more difficult to be 
 solved by the legislature than by the individual. But the 
 legislature has neither the organs to discover, nor the 
 machinery to enforce, nor the time to watch religion or 
 morality among the peoj)le. This would be too ambitious 
 and universal an empire; and yet some restraints for 
 order's sake may be classed under the head of assisting 
 and protecting those who do good. In civilised states the 
 promotion of religion and virtue is an occupation of many, 
 and requires the same protection as other occupations.
 
 44 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 What the law orders or requires is however no^; necessarily 
 identified with what is right, and it is frequently made the 
 instrument of what is wrong. A man may do all that the 
 law requires, may avoid all that the law forbids, may be 
 blameless in its eyes ; lie may pass his life without even 
 once directly invoking its aid, or provoking its punishment, 
 and yet he may be of no esteem, but rather a scorn and 
 derision among his fellows. Just lie may be, for the law 
 to some extent makes this compulsory; but beyond this he 
 may be the negation of all that is worthy and of good 
 report. The law deals only with the outward acts of man ; 
 Init beyond the range of the visiljle there is a vast and 
 widening empire, into which no legal procoses can run — 
 the seat of feelings and contemplations and the stable joys 
 of life. A^oluminous as the law is, it would require to be a 
 thousand times more vohiminous if it were to incorporate 
 all the precepts of moralists and the delicate distinctions 
 of casuists and divines. It is impossible for the law to rule 
 where nothing can be seen, or heard, or felt, and where all 
 the movements are silent, and the result incomprehensible 
 and incommunicable.^ 
 
 ^ GuizoT observes : '' When societies have attained a. qreat develop- 
 ment morality is no longer written in their codes. The legislature 
 leaves it to manners, to the intluence of opinion, to the free wisdom 
 of men's wills : it expresses only civil obligations and the jjunish- 
 ments instituted against crimes. But between these two terms of 
 civilisation, between the infancy of societies and their greatest 
 development, there is an epoch when the legislature takes possession 
 of morality, digests, publishes it, commands it — when the declaration 
 of duties is considered as the mission, and one of the most powerful 
 mediums of the law." — 3 Guiz. Civ. Fr. Lect. 9. 
 
 Aristotle seemed to tliiuk that civil sooiet}' is founded, " not merely 
 that its members might live, but that they might live well, for the 
 lirst care of the legislator must be that its citizens should be virtuous ;" 
 " otherwise," he said, " civil society wouW be merely an alliance for 
 .self-defence." "A state," he said, " is a society of people joining 
 Together, witli their families and tlieir children, to live well for the 
 sake of a perfect and independent hfe." — Arist. Fol. b. 8, c. 11. 
 
 Modern nations, however, have arrived at a conclusion the converse 
 of Aristotle's, for they seem all agreed that his secon^lary object is 
 their main object, namely, that s(x,'iety is an alliance for sell'-delence, 
 and his priuuuy object is their secondary object, that of making 
 citizens virtuous. Tliis latter object is bej^ond the scope, and baffles 
 the ambition of all govermnents. It nuiy be assisted indirectly, but 
 cannot and ought not to be attempted (lirectl3'. The empire of virtue
 
 cu. I.] LAW DOES NOT DICTATE ExAIPLOYMENTS. 45 
 
 Law does not dictate occupations. — Another thing to he 
 noticed, is that the law can only give security to the 
 occupations of individuals after each individual has dis- 
 covered and entered on them. It does not pretend to 
 teach individuals how to live— how to work, what to do, 
 or what they can do best. It is true that in Mexico and 
 Peru the lower classes could follow no craft, no amusement 
 or labour, nor even marry, without leave of the govern- 
 ment.^ But this close paternal care has been rarely 
 attempted even by the ancients. Each may be trusted to 
 find faculties and impulses wherewith to employ himself, and 
 wdiicli the law can neither give nor take away. The vast 
 variety of human occupations are not the creatures of the 
 law, though the law can do much to make these occupations 
 fruitful. The seed is already sown in the ground ; the law 
 only keeps the birds of the air from devouring it.- 
 
 is not of this world, and is maintained and extended by arts anil 
 methods nearly altogether irrespective of human laws. 
 
 Robert Hall, a great writer, traced giuiilar ideas with admirable 
 felicity and power in his Aj)ology for the Freedom of the Prens. 
 
 AsHLiRST, J., said : " It is beyond the power of the law to rectify 
 men's minds, and to infuse into them that noble fire which burns in 
 the breasts of good men, and prompts them to doing of praiseworthy 
 actions, and promoting tlie hap])iness of their country and the good 
 of their fellow-creatures ; but it is in the power of the law to take 
 from evil-minded men the ability of doing mischief, and to restrain 
 them of that hberty which they so grossly abuse." — 22 St. Tr. 234. 
 
 C. J. Fox said that the state had no right to inquire into the 
 opinions of people, cither political or religious ; it had a right to 
 take cognisance only of their actions. — 28 Pari. Hist. 12G7. 
 
 i WikofE's Civilis. 10. 
 
 ^ Pym — " The law is that which puts a difference betwixt good and 
 evil, betwixt just and unjust. If you take away the law, all tilings 
 will fall into a contusion. Every man will become a law to himself ; 
 lust will become a law, and envy will become a law : covetousness 
 and ambition will become laws. . . . The law is the bcjundary, the 
 measure betwixt the king's prerogative and the people's liberty. 
 Whilst these move in their own orbs they are a support and a sccui ity 
 to one anotlier. The prerogative alone is a defence to the liberty of 
 the people, aird the people, by their liberty, enabled to be a founda- 
 tion to the prerogative ; but if these bounds be-so removed that they 
 enter into contestation and conflict, one of these mischiefs unist 
 ensue : if the prerogative of the king overwhelm the liberty of the 
 people, it will be turned into tyranny ; if liberty undermine the 
 |)rerogative, it will grow into anarchy. . . . The law is the safe- 
 guard, the custody of all urivate interests. Your honours, yjur live.-.
 
 46 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 The current divisions of municipal law. — When tlie defi- 
 nition of law is ascertained, the next task is to divide the 
 law into its leading departments. Here also considerable 
 diversity of treatment has prevailed. It is at this point 
 that the philosophers and moralists part company with the 
 jurists and practical lawyers. All may with equal justice 
 claim some qualification to define law and its province, for 
 to do so requires no special familiarity with the details of 
 the science. But in order to distribute the materials under 
 distinct heads — to assign the place of each leading doctrine, 
 and proceed from generals to particulars, much special 
 knowledge is all but essential. Accordingly, in this part 
 of the subject there are fewer authorities, and those which 
 exist are more strictly technical and practical than in the 
 other. It is here also that the peculia^^ tendency of the 
 legal temperament begins to manifest itself — the tendency 
 to follow with more fidelity than reflection whatever some 
 great master has laid down on some previous occasion 
 more or less akin to the present. 
 
 One division i7iio judicature, legislature, and government. — 
 At the outset one large division of the law suggests itself 
 — that which distinguishes the judicature, the Ingislature, 
 and the government. Aristotle remarked that in all states 
 there must be, first a legislative power, secondly, a power 
 of government, and thirdly, a judicial power.^ And Mon- 
 tesquieu and later writers make or repeat the same distinc- 
 tion.2 But these divisions do not touch the substantive 
 law : they are rather the means of giving effect to that law.^ 
 
 your liberties and estates are all in the keeping of Ihe law. With- 
 out this every man hath a like right to any thing." — Forstcrs 
 Pym, 169. 
 
 FiLANGiERi said his conclusion was, that a government should in- 
 terfere as little as possible, and let everything take its own course. — 
 Filang. Set. dcUa Lccjisl. ch. 11. Human laws are made, not to punish 
 sin, but to prevent crime and mischief. — Pollock, C.-]3. Att.-Gen v. 
 Sillem, 2 H. & C. 526. 
 
 1 Arist. Pol. b. 4, ch. xvi, « L'Esprit, b. ii. ch. 6, 
 
 3 Montesquieu, Esprit des Lois, h. 1, ch. 3. " Law in general is 
 human reason, and is either political law or civil law. The former is 
 the law relative to the governors and the governed, the latter is the 
 law relative to the mutual relations of citizens. The largest degree 
 of liberty which the constitution and circumstances of the country 
 will permit is the object in view. Liberty is the right of doing 
 whatever the laws permit." — B. 11, ch. iii.
 
 cii. I.] ONE TART OF LAW ADMINISTRATIVE. 47 
 
 The substantive law consists of all the legal rights and duties 
 which exist between man and man. The administrative 
 law gives effect to, maintains, and enforces this substan- 
 tive law. These three distinctions manifestly pervade all 
 law. Every analysis must find them as ultimate facts 
 incapable of further simplification. Tlie substantive law 
 is the object and end of the judiciary, legislative, and 
 governing powers. These are nothing but means and 
 machinery. By this, however, it is not meant that they are 
 inferior in interest or importance. On the contrary, a 
 machinery and an orderly procedure are often the most im- 
 portant parts of the whole economy of national rights. They 
 include the forces which keep the commonwealth in healthy 
 workinij order. Under the head of the judicature is found the 
 settled mode of appointing judges and securing to them the 
 means of independent judgment, of obtaining for litigants 
 an impartial hearing, a trial by jury, a system of trustworthy 
 evidence, an inexorable and rigorous enforcement of judg- 
 ments. Under the head of the legislature, tlie smooth 
 M'orking of the law depends greatly on the election and 
 appointment of representatives of all the great interests 
 and forces which make up the nation — the security of 
 public meetings — easy access for all to suggest improve- 
 ments and mitigate anomalies and hardships — the intro- 
 duction and publication of new statutes— the assent and 
 consent of the governed — all that accompanies and makes 
 up the complete accord between the growth of the law and 
 enlightened public opinion. Under the head of government 
 or executive power we trace the modes of securing mutual 
 respect and harmony between sovereign and subject by a 
 fixed succession in one royal family — the accessibility of 
 the subject to the sovereign^the distribution of social 
 honours— the power of pardon— the control of military and 
 
 Locke on this subject says, that as " the laM'S have a constant and 
 lasting force, and need a perpetual execution, or an attendance there- 
 unto, therefore it is necessary that there should be a power always 
 ill being which should see to the execution of the laws that are made 
 and remain in force. And thus the legislative and executive power 
 come often to be separated. There are two powers — the executive 
 and the federative — the former comprehending the execution of the 
 municipal laws of the society within itself upon all that are parts of 
 it : the other the management of the security and interest of the 
 public without, with all."— Zoc/tf, On Govt. h. ii. tits. 144-147.
 
 48 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 naval forces — the defences of the nation — the orderinf]^ and 
 conduct of war — a vigilant protection of those subjects of 
 tlie reahn who liave resorted to foreign countries. By these 
 and like methods the irresistible force of sovereign power 
 is tempered to the tenderest concerns of the subject, so 
 that the meanest peasant feels that his little all is guarded 
 by the same puissant arm that subdues provinces, gives 
 away kingdoms, and battles the armaments of foreign 
 invaders. 
 
 Judicature, legislature, and government are viachinerTj to 
 worh the substantive laiu. — Taking the judicature, the legis- 
 lature, and the government as three distinct departments 
 of the law, they are each and all in the nature of machinery. 
 The "reat substantive law remains outstanding, and embodies 
 the mutual relations of subject and subject — their rights, 
 their wrongs — their remedies, their duties, their privileges, 
 their securities. It is true some of these are closely inter- 
 woven with the relations between subject and sovereign, sub- 
 ject and legislature, subject and judge. But it is to achieve 
 and maintain the substantive law that these three great 
 functions are devised — functions which, moreover, are 
 mostly executed by subjects chosen from their fellow- 
 subjects. Thus the whole system of legal relations and 
 rights is compactly built up. But to achieve and main- 
 tain in perpetual vigour the body of substantive law, judges, 
 senators, and sovereign combine, and go hand in hand. For 
 this result sovereigns reign, legislatures devise and amend 
 laws, and judges decree justice.^ 
 
 Divisions of the substantive law. — The divisions of the 
 
 ^ "Tlie administration of government, like agnardiansliip, ouglit to 
 be directed to the good of those who confer, and not of those who 
 receive, the trust." — Cic. De Off. b. i, ch. sxv. 
 
 "It is manifest that tlie power of kings and magistrates is notliing 
 else but what is only derivative, transferred and committed to them 
 in trust from the people to the common good of them all, in whom 
 the power yet remains fundamentally, and cannot be taken from 
 them without violation of their natural birthright, and from hence 
 Aristotle and the best of political writers have defined a king, ' him 
 who governs to the good and profit of his people, and not for his 
 own ends.' " — Milton's Ten. of Kings. 
 
 Bolingbrokp: says : " Kings are made for kingdoms, and not king- 
 doTris for kings. Majesty is not an inherent, but a reflected light." — 
 Tiolinfjhr. Pa r. King. 
 
 ^
 
 CH. I.] EOMAN DIVISION OF LAW. 49 
 
 - r~ — ' — ■ 
 
 substantive law are not so various as the definitions of 
 law, for philosophers have taken no part in them. Lawyers 
 and jurists have been left in undisturbed possession. The 
 ancient legislators cared little for method. The Eoman 
 law was the first subjected to systematic and critical 
 treatment, and supplied the outline of the current divi- 
 sions, at least until the time of Bentham. 
 
 Divisions of laiv in Roman and foreign ivriters on 
 lato. — The method of Gains, who confines himself to the 
 treatment of private law only, that is, the law as between 
 subject and subject of the commonwealth, is to subdivide 
 the law into the law of persons, law of things, and law 
 of actions. Such also is the division of Justinian's 
 Institutes. 
 
 As regards this division, it is enough to say that the law 
 of actions applies indiscriminately to both the other divi- 
 sions, and is indeed a necessary supplement to both. 
 And the law of persons has no clear boundary dividing it 
 fi'om the law of things, either in fact or theory, for things 
 may be said to have no existence except by and through 
 persons. 
 
 Domat abandoned the Eoman division of law into 
 persons, things, and actions, and divided all private law 
 into two main parts, viz., engagements and successions. 
 Encasements were subdivided into those common to in- 
 dividuals, and those common to individuals affected by 
 certain relations of family and marriage. Successions 
 included wills and legal distribution and descent. This 
 division was far-fetched, and obviously leaves out, or at 
 least leaves in a subordinate position, what is felt to be of 
 pre-eminent interest and importance. 
 
 Leibnitz enlarged on the defects of the celebrated divi- 
 sion of law into persons, things, and actions, which had 
 been originally published by Gaius and adopted by Justi- 
 nian in his Institutes. He sought to divide jurisprudence 
 into as many parts as there are causes which produce rights 
 and obligations. These he analysed into five. The first 
 was nature, which gives the liberty and power of dealing 
 with that which is the property of no one. 2. Succession, 
 by which the rights of deceased persons are transferred 
 to heirs. 3. Possession. 4. Contract. 5. Injury. This 
 division had much merit, but cannot be said to be 
 
 VOL. I. E
 
 50 ON THE LIBERTY OF THE SUBJECT. [inteu. 
 
 exhaustive, or to bring out all the chief causes of rights 
 and obligations.^ 
 
 ^ Vico expressed an idea that legislation, dealing with man as he is, 
 found him the slave of three vicious passions, which distracted all 
 mankind — ferocity, avarice, ambition — which produced the army, 
 commerce, and the court. These three great vices were moderated 
 by legislation, and converted into sources of civil order and felicity. 
 — Vico, Nuov. Sci. degli Elem. The same author observed that 
 all nations, barbarous or civilised, separated by time and space, yet 
 agreed in three customs. All have a religion, all solemnly contract 
 marriages, all bury their dead. These were three eternal and universal 
 customs, and were the first principles according to which all nations 
 arose and are preserved. 
 
 Vico, however, was wrong as to the two latter universal customs, 
 as records of manj' tribes show that marriage and burial are not 
 universal characteristics. The grounds are moreover too vague to 
 suggest any methodical division. 
 
 Kant adopted the general di\asion of the duties of law according 
 to Ulpian : 1. Honeste vivere. 2. Neminem Icedere. 3. Suum 
 cuique tribuere. These three maxims can, however, be viewed as 
 nothing but phases of one fundamental conception, each being only 
 a different mode of expressing the same thing. In order to know 
 what is the meaning of not injuring anyone, we must know what is 
 an injury, and that again implies that we know what each is entitled 
 to as his own, and what is the complement of legal rights — in other 
 words, each of these phrases amounts to little more than saying that 
 law is law. It is too indefinite to be of use in arriving at an insight 
 into the structure of the law, and is obviously founded on no clear 
 analysis. 
 
 The French code is subdivided into the civil code, the commercial 
 code, the code of civil procedure, the penal code, the code of criminal 
 procedure. The two first codes contain much in common, and though 
 the three last relate to procedure, they do not clearly bring out the 
 substantive rights of which crimes and wrongs are only the 
 violation. 
 
 Saviony divides law into constitutional or public law. and private 
 law. Tlie first has for its object the state, that is, the organic mani- 
 festation of the people ; the second has for its object the judicial 
 relations, which encircle the individual man. In the public law the 
 whole appears as the end, the individual as subordinate ; but in 
 private law the individual man is the end, and every juridical relation 
 is regarded merely as means for his existence or his particular 
 benefit. — Sav. Syat. of Mod. Rom. Lmv. 
 
 Staiu, the leading Scotch jurist, after noticing the Roman divisions 
 into persona, things, and actions, rejects it, and lays down the subject 
 thus*: — 1. Constitution and nature of rights. 2. Conve3%ance, or 
 translation from one person to another, wliether from living or dead. 
 3. The cognition of rights, which comprehends the trial, decision, 
 and execution of every right by the legal remedies. These, however, 
 form in reality only one head, which might have been called rights, 
 and their enforcement. 
 
 I
 
 en. I.] BLACKSTONE'S DIVISION OF LAW. 51 
 
 Division of laio accoi'ding to English ivr iters. — The 
 division of law according to English writers has been 
 entirely founded on that of the Roman law. Bracton 
 first treats systematically of the Avhole body of the law, 
 both the substance of the law and the procedure appro- 
 priate to its several heads. He follows the civil law, and 
 divides the subject into the law of persons, of things, and 
 of actions, the last head being subdivided into criminal 
 and civil actions. Persons are divided into freemen and 
 Adlleins, or slaves, and their status and riglits are qualified 
 by age, sex, and family. 
 
 Britton neither defines law nor gives any systematic 
 classification of the subjects it includes. He only describes 
 the courts as they then existed and the business they 
 dealt with, and then treats of everything else under the 
 head of personal actions and real actions, the last forming 
 the most important, as they deal with the possession of and 
 property in land ; and the great disturbing facts were the 
 death, marriage, or disseisin of the owner, round which 
 most of the details revolve. 
 
 Eortescue, Coke, Plowden, and minor writers say nothing 
 of consequence as to the divisions of law. Plowden 
 loosely says the law of England has six principal founda- 
 tions: the law of reason, the divine law, the general 
 customs of the kingdom, certain principles and maxims, 
 particular customs, and statutes.^ 
 
 Hale and Blackstone's division of law. — Hale, whose 
 division of the law has been little criticised and generally 
 accepted, divides law into civil law and criminal law.^ 
 
 1 Plowd. Com. 811. Doct & St. 12. CoweU, Instil 4. 
 
 The Speaker of the House of Commons, himself a lawyer, told 
 King James I., at the end of his second parliament, that our laws 
 were of three kinds : 1. The common law, groimded or drawTi from 
 the law of God, the law of reason, and the law of nature, not mut- 
 able. 2. The positive law, founded, changed, and altered by and 
 through the occasions and policies of times. 3. Customs and usages 
 practised and allowed with time's approbation and without known 
 beginnings. — 1 Purl. Hist. 1046. 
 
 ^ Civil law consists of civil rights of persons and things — persons 
 being natural and artificial, and having certain capacities and certain 
 political, economical, and civil relations inter se. Under persons are 
 arranged magistrates, supreme, like the legislature and the executive, 
 or subordinate, Hke the ordinary courts. Things are temporal, like 
 highways, bridges, rivers, ports, and private estates ; or ecclesiastical, 
 
 E 2
 
 52 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 Hale, it is to be observed, candidly admits that he had 
 not thoroughly thought out the subject of a division 
 of the law, and did not profess that his division was the 
 best. He believed that he could under some head in his 
 outline manage to put every chapter and verse of the law. 
 But more than that he did not profess. And it is obvious 
 that under almost any division of law that may be selected 
 all the various subjects could be arranged. The question, 
 however, at present is. Which is that division of the law 
 which arranges the details in their most natural order, and 
 such as will commend itself most to those who enter upon 
 the study of the law, or contemplate it from the ground 
 occupied by intelligent laymen ? 
 
 Blackstone, following Hale, says the primary division is 
 into rights and wrongs. Rights are subject to a division 
 into those which concern the persons of men, and are then 
 called jura 2Jersona7'icm, or the rights of persons, and into 
 those which a man may acquire over external objects or 
 things unconnected with his person, which are styled jura 
 rerum, or the rights of things. Wrongs are also divisible 
 into, first, private wrongs, which, being an infringement 
 merely of particular rights, concern individuals only, and 
 are called civil injuries ; and, secondly, public wrongs, 
 which, being a breach of general public rights, affect the 
 whole community, and are called crimes and misdemeanors. 
 Thus the four great divisions of the law are said to be, 
 rights of persons, rights of things, private wrongs, public 
 wrrongs.^ 
 
 Blackstone's method thus consists in, first, dividing all 
 law into the law of persons and the law of things ; he 
 next divides law into the law of civil injuries and civil 
 procedure, and the law of crimes and criminal procedure. 
 
 like cliurchcs, chapels, benefices. And, finally, civil law includes 
 wrongs and their remedies. Criminal law is not treated in detail, 
 but its subjects are more or less similar. 
 
 ^ 1 Bl. Com. 138. Most oi" the critics of Blackstone's division take 
 much credit to themselves for pointing out the so-called absurdity 
 of this division, viz., " rights of things," and they gravely remark 
 that tilings can have no rights, and that he ought to have said " rights 
 relating to things." Such critics have only shown that they had not 
 read what Blackstone himself says (2 Bl. Com. 1) : '■^ Jura rerum are 
 those rights which a man may acquire in and to such external 
 things as are unconnected with his person."
 
 CH. I.] BENTIIAM'S DIVISION OF LAW. 53 
 
 The last division, however, pervades iudiscriminately 
 the first and second divisions, so that in reality, though 
 there may be a convenience in treating the subjects as he 
 has treated them, there cannot be said to be any exhaust- 
 ive method or any clear line of demarcation covering the 
 whole field of the law. Even the boundaries of the 
 law of persons and the law of things are intermixed and 
 undistinguishable in several directions. ^ 
 
 Bcntham's and other divisions of lavj. — Bentham, after 
 reviewing previous systems, selected, as the best general 
 arrangement of a code of laws, the threefold division of 
 penal law, civil law, and constitutional law.^ He said, all 
 previous attempts at a code were imperfect or faulty in 
 their analysis, but he had so arranged his own scheme that 
 every title and chapter found an appropriate place. He 
 rejected the Danish code, the Swedish code, the Frederi- 
 cian code, the Sardinian code, the Tlieresan code, as 
 imperfect or disorderly. He observed, that, though Black- 
 stone's plan was arbitrary, it was preferable to all those 
 vv^hich preceded him, and his was a work of light in com- 
 parison with the darkness which previously covered the 
 wJiole face of the law. 
 
 Bentham's own view of the advantages of his division 
 is well deserving of attention, whatever may be thought of 
 the success with which he carried it out. He said that his 
 classification w^as the most natural, that is to say, the most 
 easy to be understood and remembered. It was simple and 
 uniform. It was best adapted for discourse, that is to say, 
 best adapted for announcing the truths connected with the 
 subject. It was complete, for there was no imaginable law, 
 to which it was not possible by means of it to assign a 
 proper place. It displayed intention, for ifc was so contrived 
 that the very place, wdiich any offence is made to occupy, 
 
 1 " Blackstone pursues a metaphysical inquiry upon the nature 
 of laws in general, eternal and positive laws, and a number of sub- 
 lime terms, which I admire us much as I can without understanding 
 them. Instead of following this high priori road, would it not be 
 better humbly to investigate the desires, fears, passions, and opinions 
 of the human being, and to discover from thence what means an able 
 legislator can employ to connect the private happiness of each indi- 
 vidual with the observance of those laws which secure the well-being 
 of the whole ? " — 5 Gibbon, Misc. Works, 5-4G. 
 
 - 3 Bentham, 157.
 
 54 ON THE LIBERTY OP THE SUBJECT. [intro. 
 
 suggests the reason of its being put there. Lastly, the classi- 
 fication was universal, for it was governed by a principle 
 which was recognised by all men, and would serve alike 
 for the jurisprudence of all nations. On this last crowning 
 feature his language rose into enthusiasm. He says : " In 
 a system of law framed in pursuance of such a method the 
 language would serve as a glossary, by which all systems 
 of positive law might be explained, while the matter would 
 serve as a standard by which they might be tried. Thus 
 illustrated, the practice of every nation might be a lesson 
 to every other, and mankind might carry on a mutual inter- 
 course of experiences and improvements — as easily in this 
 as in every other walk of science. It might thus possess a 
 utility independent of the use which might be made of it 
 by the governments of the world. If the different penal 
 laws in the world were arranged according to this method, 
 all their imperfections would become visible ; without 
 argument respecting them, they would be discovered by 
 inspection. Here would be offences omitted, there imagi- 
 nary offences ; here redundant laws containing numerous 
 descriptions of different kinds of theft or personal offences, 
 &c., instead of one general law. This classification would, 
 therefore, prove in legislative science what instruments of 
 comparison, such as the barometer and thermometer, have 
 been found in physical science." ^ 
 
 Objections to the current divisions of law. — None of the 
 current divisions of the law carries on its face with suffi- 
 cient clearness the reasons for its existence. And while it 
 would be tedious to discuss the details in order to make 
 manifest this defect, a better division seems to be suggested 
 by imitating the way in which intelligent minds approach 
 the study of the law for the first time, and, as Gibbon 
 observed, by investigating human desires, fears, passions, and 
 opinions. As to those who are already familiar with the 
 practice of the law, and have already of necessity formed 
 for themselves some classification of their own, any other 
 classification may be felt to be superfluous. But however 
 the law may have been first studied, and by whatever 
 approach its details may have been reached and mastered, 
 it will yet generally be found, that it is only after years of 
 attentive reflection that the vast and confused materials 
 ^ 3 Bentham'8 Works, 172.
 
 CH. I.] WHAT IS BEST DIVISION OF LAW. 55 
 
 arrange themselves iu the mind in any settled order. 
 When this occurs, groups and sequences are readily visible. 
 Each chapter and verse has its appropriate record in the 
 pigeon-holes of the memory. A panorama of such a kind 
 as this may be said to be the necessary result only of 
 close attention and long manipulation, and yet differs mate- 
 rially from any of the current methods.^ Law is mastered 
 only after great experience, or rather after the reflection 
 which supervenes on experience. By whatever access the 
 precincts are entered, the interior economy is found to be 
 the same, yet the contents are sorted differently. Each 
 may have accomplished the conspectus in his own way, and 
 the arrangement may be as various as the mental idiosyn- 
 cracies of the learners. It is however only by having regard 
 to the definition of law, if any such can be found, that a 
 clue out of the labyrinth of details can be most readily 
 obtained. 
 
 What is the lest division of municipal law. — In consider- 
 ing what is the best division of the municipal law, it will 
 therefore be useful to recall the definition already given, 
 namely, that it is the sum of the varied restrictions on the 
 actions of each individual, which the supreme power of the 
 state enforces, in order that all may follow their occupa- 
 tions with greater security.^ Now if this is correct, nothing 
 can turn on the law relating to persons, as contradistin- 
 guished from the law relating to things. Things have no 
 separate existence in the eye of the law any more than in 
 the eye of the metaphysician, but they are known only by 
 and through persons who have rights and wrongs in respect 
 of them. The law begins and ends with persons and their 
 doings ; all else is sequel and development. A mountain, a 
 house, or a ship has neither rights, nor wrongs, nor remedies. 
 
 1 Whewell says the primary and universal rights of men are five : 
 (1) The right to personal security ; (2) the right of property ; (3) 
 the right of contract ; (4) family rights ; and (5) government. — 
 Whewell, 1 Elem. Mor. s. 80. 
 
 An able writer, Mr. Sheldon Amos, suggests the following division 
 of subjects for a code of English law : (1) Laws relating to the 
 constitution and administration of the state ; (2) laws of ownership ; 
 (3) laws of contract ; (4) laws affecting special classes of persons, 
 such as husbands and wives, parents and children, professions, cor- 
 porations ; (5) laws of civil injuries ; (6) criminal law ; (7) laws of 
 procedure. — Amos on a Code. " Ante, p. 27.
 
 56 ON THE LIBERTY OF THE SUBJECT. [mrno. 
 
 Its owner only can enjoy and suffer, maintain and vindicate. 
 But the method of Blackstone is to begin with persons as 
 distinguished from things, and to describe successively the 
 sovereign, the members of the legislature and of the 
 government, justices of the peace, sheriffs, coroners, con- 
 stables, overseers, clergy, husband and wife, master and 
 servant, guardian and ward. We are informed of some of 
 the things which each of these individuals does. But most 
 of these particulars are merely special functions appertain- 
 ing to a few members singled out from the whole commu- 
 nity. Such functions and special features form but a 
 small proportion of the total rights of these individuals. 
 What is special is transitory and insignificant compared 
 with the great residue of rights permanently vested and 
 centred in each and all alike. The sovereign, indeed, 
 stands in a position somewhat apart. But all the other 
 individuals, the legislators, judges, officers, husbands, 
 masters, parents, guardians enjoy precisely the same 
 rights, as the rest of the undistinguished throng. They 
 buy and sell, enjoy and vindicate, acquire and transfer 
 and bequeath, are born, live, and are buried in the same 
 manner as the rest of the community. What is common 
 to them with their fellow-citizens is so vast, compared 
 with the few particulars in which they differ, that it 
 is illogical and purposeless to constitute them into a sepa- 
 rate division on that account, and far less into the first of 
 the divisions. These special functions are all in the nature 
 of variations caused by what they do, and how they come 
 to do it. Wliatever each has to do may be necessary to 
 the working out of the whole system either as means or 
 machinery ; but men are not made in order to keep up 
 these particular functions; the functions are made for the 
 men and the circumstances, to serve some purpose in the 
 general economy of the commonwealth. The mass of the 
 community consists of men who have identical rights — who 
 differ from each other only in subordinate and unimportant 
 particulars. What each and all can, or cannot do, forms 
 the fundamental conception of all law. What each has 
 and enjoys, stripped of all the accidents and adventitious 
 circumstances which cause distinctions to be maintained, 
 is the standard to which all varieties refer. The normal 
 man — his rights, his wrongs, and his remedies — is the leading
 
 CH. I.] CURRENT DIVISION OF LAW WRONG. 57 
 
 idea, and claims the first attention ; and all divisions of 
 subjects must be subordinate to that. The law of persons 
 as treated by the Roman law, and by Hale and Blackstone, 
 ceases to have any distinct bearing, when we seek to analyse 
 the conception represented by the normal man, of whom all 
 individual persons and functionaries are but insignificant 
 variations. 
 
 Reasons for discarding the current division of the law as 
 to persons. — If one were to seek a reason why the Roman 
 division of the law of persons was first adopted and has so 
 long kept its ground, such reason is not far to seek. When 
 mankind consisted of freemen and slaves, — when one- 
 twentieth, or one-tenth, of the population were heroes, and 
 the rest were in the rank of cattle, — such a distinction 
 appeared of the highest importance, and must have filled 
 a large space in the mind's eye. The early and middle 
 ages had similar reasons for accepting the order laid down 
 for them by their predecessors. The Roman and mediaeval 
 mind could never rise to the height of moral elevation in 
 which the essential equality of mankind in the eye of the 
 law is an elementary and ineradicable first principle, not 
 to be frittered away, or tampered with, or lost sight of for 
 a moment — which no variety of time, or place, or circum- 
 stance can modify or reverse — which the kindest and most 
 fatherly treatment by the most humane of proprietors can 
 never dispense with, supersede, or obliterate — the want of 
 which cannot be atoned for by wealth, or ease, or kindness, 
 or comfort, or late-acquired freedom — a sentiment which, 
 when once enjoyed, can never be relinquished — without 
 which a hidden want is always felt — without which life 
 itself is poisoned at every pore. It was a weakness of the 
 ancients not to be forgotten, that it never occurred to 
 their legislatures, that human beings were all on one level 
 as to legal rights, — that there was no foundation for classi- 
 fying them according to the colour of their hair or their 
 skin, their origin, their race, their climate, their stature, 
 their virtues, their poverty, or their misfortunes. Whether 
 a man was caught in battle or found at peace, was a mere 
 accident of the moment. It never entered into the mind 
 of Plato, or Aristotle, or Cicero, or Tribouian, and all the 
 council of Justinian's jurists, that there ever could be a 
 state of society in which the great majority did not consist
 
 58 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 of slaves. Hence it was as excusable for their law as it 
 is inexcusable for ours, to start with the great division of 
 freemen and slaves.^ And the other parts of the same 
 division, namely, parent and child, husband and wife, 
 guardian and ward, master and servant, had so much of 
 the slavish element transfused into them, that they naturally 
 bore company with the first. But now, after centuries 
 from the dawn of Christianity, since the name of slavery 
 has been expunged from the book of civilisation, the dis- 
 tinction of freeman and villein, and all the distinctions 
 flowing from that tainted source may be at once discarded 
 as founded on a delusion never more to be tolerated among 
 mankind. It is a delusion, that, because there are and 
 must be inequalities in the rank and condition of indi- 
 viduals, these may or ought to be further aggravated by 
 making them perpetual and irreversible, altogether irrespec- 
 tive of personal merits. The chance of war or the accident 
 of an accident is now confessed to be a worthless excuse 
 for seeking to rivet the permanent and galling yoke of 
 slavery upon those, who are conscious of the same " hands, 
 organs, dimensions, senses, affections, passions" as their 
 owners, and differ in nothing but the unequal weights 
 imposed upon them at their start in the same race. 
 Whatever be the price of holding fast to this first and 
 unchangeable condition of society — the personal freedom of 
 each individual — that price we must, in the words of 
 Montesquieu, be content to pay to Heaven.^ 
 
 1 De Tocqueville — " The most profound and capacious minds of 
 Greece and Rome were never able to reach the idea, at once so general 
 and so simple, of the common likeness of men and of the common 
 birthright of each to freedom, and they strove to prove that slavery was 
 in the order of nature, and that it would always exist. Nay. more, 
 everything shows that those of the ancients who had passed from 
 the servile to the free condition, many of whom have left ■wTitings, 
 did themselves regard servitude in no other light. All the great 
 writers of antiquity belonged to the aristocracy of masters, or at 
 least they saw that aristocracy established and uncontested before 
 their eyes. Their mind, after it had expanded itself in every direc- 
 tion, was barred from further progress in this one, and the advent 
 of Jesus Christ upon eartii was required to teach that all the mem- 
 bers of the human race are by nature equal and alike." — De Tocque- 
 ville (tr. by Reeves). 
 
 '*' Don Alphonso of Castile, in 1.3.37, gained immortal credit for pro- 
 curing from his assembly a law, tliat no rank should exempt men 
 from the laws. — 8 U7iiv. Mod. Mist. 43.
 
 CH. I.] ANCIENT AND MODERN LAW. 59 
 
 Ancients not likely to have attained just notions of division 
 of laws. — However great were the ancients in some of their 
 moral aspects, however acute as thinkers on philosophical 
 subjects, and however sensible in the law of buying and 
 selling, their notions of human government and of the 
 mutual relations between man and man in social and 
 political life were derived, among the Greeks, from an 
 experience of petty communities, and, among the Eomans, 
 from an organisation loosely compacted of barbarous tribes. 
 On all the leading points in daily life their thoughts were 
 not our thoughts. Who could now be satisfied with the 
 ripest wisdom of Plato and Aristotle, of Cicero and 
 Tribonian, after having been taught by Pym and EUot, 
 by Hampden and Selden — the greatest geniuses for govern- 
 ment that the world has ever seen?^ Whatever was the circle 
 of doctrines and practices, ends and methods, that passed 
 as law with the ancients, it can scarcely find its counterpart 
 In the stately panorama of rights and liberties, mutual 
 checks and securities, between kings, legislatures, and 
 judicature on the one hand, and subject and subject 
 on the other hand, as these passed before the masterly 
 intellect of Pym, whose great ideas and conquests we 
 inherit, fortified and matured by the stirring events of two 
 centuries more.^ The Sermon on the Mount, and all that 
 
 BuLLER, J., well handled the common saying about " one law for the 
 rich and another for the poor " : " There is not in this country- 
 one rule by which the rich are governed, and another for the poor. 
 No man has justice meted out to him by a different measure, on 
 account of his rank or fortune, from what would be done if he were 
 destitute of both. Every invasion of property is judged of by the 
 same rule : every injury is compensated in the same way, and every 
 crime is restrained by the same punishment, be the condition of the 
 offender what it may. It is in this alone that true equality can exist 
 in society ; different degrees are necessary for every government, 
 and greater talents and industry will in the course of things give 
 one man a superiority over another. And without some distinction 
 and rank the magistrate would want authority, virtue would be 
 without ;one of its strongest incentives, and the prudent and in- 
 dustrious would remain on a footing with tlie idle and the dissipated." 
 —Per Buller, J. {O'Coighly's case) 26 St. Tr. 1193. 
 
 ^ Warburton so described them. — Fcrster's Pym. 
 
 ^ Pym, one of the greatest of Englishmen, in 1641 struck a key 
 which might have led to a division of laws much superior to Hale's 
 and Blackstone's, though Pym himself was not a trained lawyer. He 
 says : " The greatest liberty of the kingdom is religion : thereby we
 
 60 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 flowed from it, communicated no ideas to ancient jurists 
 and legislators, and scarcely penetrated the darkness of 
 the middle ages. The sumptuary laws of the ancients 
 long misled the mediseval governments, which, without 
 reflection, imitated and adopted them. Slavery was the 
 informing spirit of all their social arrangements, and 
 however suitable their definitions and classifications of 
 legal doctrines may have appeared to them, we must search 
 out others more in harmony with the dignity of the indi- 
 vidual, and the indelible equality of the various races of 
 men in the eye of the law. Higher standards of justice and 
 of social life demand a method as far asunder as possible 
 from all pagan ideas and practices. 
 
 Best division of law is according to subjects of occupations. 
 — First division is SECUKITY OF PEESON. — But though the 
 division into persons and things, however ancient, is now 
 obsolete and unmeaning, there is an obvious distinction 
 between laws according to their subject-matter. As 
 Leibnitz pointed out, law may be divided into as many 
 parts as there are causes which produce rights and obliga- 
 tions. What then are those causes when viewed in 
 relation to the normal man ? AVhat are the great subjects 
 round which rights and obligations are grouped ? 
 
 The first of these may be said to be such as relate to the 
 protection of the body against wrong and interference. Of 
 all the intimate relations between two distinct things, that 
 between mind and body is the most intimate. A man 
 may have property in external things — little, or much, or 
 
 are freed from spiritual evils, and no impositions are so grievous 
 as those that are laid upon the soul. The next great liberty is 
 justice, whereby we are preserved from injuries in our persons and 
 estates ; from this is derived into the commonwealth peace and 
 order and safety, and when this is interrupted, confusion and danger 
 are ready to overwhelm all. The third great liberty consists in the 
 power and privilege of parliament, for this is the fountain of law, 
 the great council of the kingdom, the highest court ; this is enabled 
 by the legislative and conciliary power to prevent evils to come ; by 
 the judiciary power to suppress and remove evils present. If you 
 consider these three great liberties in the order of dignity, this last 
 is inferior to the other two as means are inferior to tlie end ; but 
 if you consider them in the order of necessity and use, this may 
 justly claiai the hrst place in our care, because the end cannot be 
 obtained without the means, and if we do not preserve this, we 
 cannot long hope to enjoy either of the other." — Forster's Pym, 93.
 
 CH. I.] DIVISION OF SECURITY OF THE PERSON. fil 
 
 noDe at all ; he may enter into contracts — many or few ; 
 may have a sense of religion, of freedom, of free thought, 
 free speech, and public worship ; he may feel a strong 
 interest in legislation, government, and the administration 
 of justice. But none of these things touches him so 
 closely as his own body, as the sense of life and health, 
 of pain and pleasure, of locomotion and imprisonment. 
 Property, contract, reputation may be dispensed with ; 
 they are separable, and may be viewed at a distance, but 
 mind and body remain in indefeasible partnership, not to 
 be forgotten, ignored, or left in abeyance for an instant, 
 and to maintain the integrity of which all the instincts 
 of the individual combine. The common duty of self- 
 preservation is one, which, as Erskine said, nature writes 
 as a law on the hearts of even savages and brutes. The 
 first of all subjects dealt with by the law is none other 
 than the person or body. Coke said, " the liberty of a 
 man's person is more precious to him than all the rest 
 that follows." ^ . Here the law has its first and its most 
 emphatic statements and expositions to make. What it 
 does to protect the body against attacks, and wdiether this 
 protection is made effectual by action, by indictment, or by 
 self-defence — by direct or circuitous processes — it is obvious 
 that a large and pre-eminent part of the law must be set 
 apart to this subject alone. Not only must the body of 
 each be protected against wrong caused by the acts of 
 others, but inasmuch as the chief medium of punishment, 
 of coercing the will and shaping the conduct, is the pain 
 and anguish of the same body, there is an obverse side of 
 the medal also to be contemplated. Whatever the law 
 does to protect the body of one person necessarily involves 
 correlative liabilities attaching to the persons of others. 
 If one is to be protected against murder, mutilation, and 
 insult, this cannot be, except by the inflicting of pain and 
 suffering on the body of some other, What is vindicated 
 by one must be suffered by another. The very same body, 
 in order to enjoy for itself, must also submit to some 
 restraint for the sake of that very enjoyment in others. 
 Each acts and reacts on the other. What each gains is at 
 the expense of the rest, or rather, all the others are put 
 
 1 2 Inst. 45.
 
 62 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 under restrictions, in order that each one may be free from 
 interference as to the end to be achieved. Wliatever, there- 
 fore, the law says or does for the protection of the body — 
 whatever the body suffers by way of punishment as the 
 counterpart of that protection — these constitute the double 
 aspect of its legal treatment. In short, all that law does 
 or can do with the body — the best and the worst that can 
 happen to it — constitute the first and leading division of 
 municipal law. Such a division recommends itself to all 
 states of civilisation. It makes all modes of government 
 and grades of society akin. Every system of law, or 
 semblance of a system, cannot choose but do something 
 to make some provisions, good or bad, which collectively 
 form the law of the security of the person.^ 
 
 VariatAons in division of security of person, hy age, sex, 
 insanity, death. — The first division of law — that which 
 relates to the security of the person, includes all the modes 
 by which the body is protected against w^rong, whether 
 threats, or acts of violence of every degree, while the 
 machinery by which this protection is worked out — the 
 punishment, pain, and death of the wrongdoer — is a necessary 
 sequel, and concludes all that the law provides for the body. 
 In further pursuing this subject, however, it is to be noticed 
 also, that the normal man is assumed to be of full age and 
 of sane mind, master of his own actions, and as independent 
 of all other individuals as other requirements of the law 
 
 ■ 1 A great judge (Pratt, C. J.), carried away with the heat of argu- 
 ment, said " the great end for which men entered into society was 
 to secure their property. That right is preserved sacred and in- 
 violable in all instances, where it has not been taken away or 
 abridged by some public law for the good of the whole." — Entick v 
 Carrington, 19 St. Tr. 1030. This phrase is often repeated, but instead 
 of being the great end, property is only one of ten great ends, each, 
 or at least several of the others, being quite as important in all 
 respects, as a consideration of the other nine divisions of the law will 
 make sufficiently obvious. 
 
 Others said : " Give me the liberty to know, to utter, and to argue 
 freely according to conscience, above all liberties." — Milton, Areop. 
 " The two great pillars of the government are parliaments and 
 juries. It is this gives us the title of freeborn Englishmen, for my 
 notion of free Englishmen is this, that they are ruled by laws of 
 their own making, and tried by men of the same condition with 
 themselves."— PawZe, arg. 8 St. Tr. 183. " The liberty of discus- 
 sion is the chief safeguard of all other liberties." — 1 Macaulay's 
 Hist. eh. 10.
 
 CH. I.] DIVISION OF SECURITY OF PEOPERTY. 63 
 
 permit. The body has, so to speak, some mental charac- 
 teristics attached to it. The rights and wrongs of the 
 full-grown sane individual form the main subject. But 
 man is liable to certain incidents which cause variations 
 of these rights. He is born — he passes part of his life as 
 an infant, his judgment ripens with his body, and he dies. 
 These leading circumstances all indicate certain variations 
 of the same subject, for there must be, laws peculiar to the 
 state of infancy, peculiar to the state of insanity, and 
 peculiar to the stage of death, the chief of which is burial. 
 There are also other variations of a like kind caused by 
 sex. Some peculiar laws are required for one sex which 
 are not required for the other, and some for insane persons 
 which are not required for sane persons. All these, however, 
 are only variations of the main and substantive law of the 
 normal man, the basis of all legal conditions. The incidents 
 above mentioned, being the occasions of these variations, 
 require accordingly to be noticed at the conclusion of the 
 account of this first division of the security of the 
 person. 
 
 Second division of law is security of property. — When 
 the law has said all that can be said about the body, other 
 divisions must be thought of; and here again it is useful 
 to recall the definition of law, which was stated to be a series 
 of restrictions on the actions of man. This leads to the 
 inquiry. What are the main actions or occupations of man ? 
 These at first sight seem so nearly infinite as to be scarcely 
 reducible to order. But after some consideration it will 
 be found, that all human occupations, tendencies, and 
 objects, so far as the law has to do with them, are 
 reducible to a few leading heads. These should, for 
 purposes of method, be as nearly as possible independent 
 of each other, and as nearly as possible first principles of 
 human nature. The most conspicuous of all the occupations 
 of man, next to the care of his own body, is that of the 
 enjoyment of property. This is a tendency or an instinct 
 not to be resolved into anything simpler, though philosophers 
 have indulged in many speculations as to how this tendency 
 is created, how it grows, and what metaphysical elements 
 combine in its formation. It is enough for the law to 
 assume, that the desire to enjoy property may be said to be 
 a legal instinct requiring no further explanation, any more
 
 64 ON THE LIBERTY OF THE SUBJECT. [intbo. 
 
 than the instinct of the bee, the squirrel, or the beaver. 
 The law can neither give nor take it away ; it springs eternal 
 in the human breast, and all that the law can do is to protect 
 and regulate it to a small extent.^ It has obviously no 
 relation, such as the casual hoards of the lower animals 
 have, to a few days' maintenance, though the appetite often 
 supplies its first motive power. It grows from a material 
 into almost an intellectual habit, and its effects far outgrow 
 any relation to the bodily wants. While the lower animals 
 live from hand to mouth, man accumulates stores which 
 can never by any possibility be needed for his own personal 
 use ; and the desire to maintain intact these acquisitions 
 is nearly the last infirmity which leaves the mind in the 
 living body. No law can wholly extirpate this desire to 
 accumulate property ; it is independent of all laws, though 
 it engrosses so much of the energy of man, that no law 
 can afford to leave it unnoticed.^ It is always treated as if 
 too much can never be made of it. The way in which the law 
 protects and encourages the individual in his accumulations 
 of property is by provision against interference from theft 
 and injury, from trespass and molestation. The subject- 
 matter of property and the mode of enjoyment form a large 
 part of the whole. The details of the restrictions are neces- 
 sarily manifold, and it is enough to say that the second 
 great division of the law^ is this security of property. And 
 it is subject, like the former division, to the variations 
 caused by birth or infancy, sex, insanity, death, each of 
 which conditions gives rise to pecuhar provisions in aid of 
 the fundamental instinct of accumulating property. 
 
 Third division is SECURITY OF MARRIAGE. — The third 
 great division of the law is also totally distinct from, and 
 not resolvable into either of the others. It relates to 
 marriage — a tendency, or an instinct, or whatever it maybe 
 called — wdiich is wholly independent of law, which can only 
 be restrained in a small degree, and yet the details of its 
 restrictions are also manifold, and have cost all legislatures 
 much thought and care. In one respect the division relating 
 
 1 Cicero said tli.at commonwealths and states were established 
 jirincipally in order that men should hold what was their own. — 
 Cic. De. Off.h.ilc. U. 
 
 " As Pym said : " Without law cv.^ry man has a right to every- 
 thing."— ylft^e, p. 46.
 
 CH. I.] TENFOLD DIVISION OF LAW, G5 
 
 to marriage is only such a variation of the two former 
 divisions as is attributable to sex, for when two persons 
 are married this relation causes changes in the individual 
 rights of each, both as regards their persons and their 
 property. Nevertheless, marriage fills so large a space in 
 human life, and its results extend so far, and involve so 
 many third parties, that it is a division of itself, and cannot 
 be properly included in any other. It begins with the 
 form of a contract between two persons, but it has wide and 
 far-reaching effects; and, when children are born, fresh 
 subsidiary relations are created, and still further intricacy 
 pervades the property of each of the group. The main re- 
 strictions on the actions of man in reference to marriage 
 are those which confine the relation to certain persons not 
 being near relatives, to mutual control both of the person 
 and of the property of each — to the mutual maintenance of 
 children and parents, together with still further variations 
 caused by infancy, insanity, and death. The security of 
 marriage is therefore one main division of the law, and 
 includes all the peculiarities caused by this natural and 
 inevitable union between man and wife. 
 
 Fourth division is security of public woeship. — After 
 the security of the person, property, and marriage, comes a 
 division also independent of all these, and referable to no 
 other head. This is the tendency or instinct of public 
 worship. In all states of society there is a gravitation 
 towards the supernatural and the infinite — to take cognis- 
 ance of a Source of power independent of man, and 
 confessedly his master. Speculations on this subject, with 
 a view to attain definite ideas as to a great First Cause, are 
 unceasing. But no tribe of savages is so rude, no grade of 
 civilisation so illiterate on the one hand, or so refined on 
 the other hand, that the tendency to worship a god publicly 
 does not take some shape, and become a conspicuous feature 
 of social life. The very lowest glimmering of this charac- 
 teristic of man may be nothing more definite than a 
 suspicion of witchcraft. The tendency to public worship, 
 as apart from private worship, is radical and irrepressible : 
 it pervades human nature in all countries ; and the law 
 cannot avoid putting some restrictions on human conduct 
 in relation to it. How far all shall be compelled to follow 
 certain uniform ceremonies and creeds — how one class of 
 
 VOL. I. F
 
 66 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 men are set apart to the sacred profession — how far certain 
 property is dedicated to its use — how far dissenters and 
 even impious opponents are tolerated — all the particulars 
 surrounding this human tendency are included under 
 that division of law entituled the security of public 
 worship. 
 
 Fifth division is SECURITY of thought, speech, and 
 CHARACTER. — A fifth division may be said to be devoted 
 to the intellectual side of human nature — the tendency to 
 free thought and speech, and social reputation. These 
 three subjects are closely connected together, and they are 
 altogether independent of the mere care of the body, the 
 mere care of property, of marriage, and public worship. How 
 far free thought, speech, and reputation are protected and 
 regulated — the liberty of the press, libel, all that flows 
 from the desire of the human mind to exercise itself on 
 the affairs of life, and on the communication of ideas 
 between man and man fall under this division, which may 
 be called the security of thought, speech and character. 
 
 In some respects this division may be said to include 
 the security of public worship, which forms the subject 
 •of the preceding division, for at the root of both is the 
 freedom of thought and the protection of that freedom. 
 But public worship even to tliis day in many countries 
 exists without much freedom of thought, and the law is so 
 voluminous on both subjects, that it is expedient to separate 
 them on that account. Moreover, public worship includes 
 the relations of man to his Maker, while this division 
 concerns mostly the cognate relations between fellow-men. 
 
 Sixth division, security of contract and business. — 
 The next division of the law consists of the tendency of man 
 to enter into contracts in pursuit of his occupations and 
 interests, to manage his own affairs in his own way This 
 tendency is by no means, as some pliilosophers would have 
 us believe, the creature of the law, any more than the 
 previous divisions. There would be contracting, bargain- 
 ing, buying, and selling, whether there were law, or not. 
 This division is large, and covers a great variety of human 
 occupations not touched b}"" the former divisions. Contracts 
 fill up a great portion of the life of each individual, and 
 the law for various reasons interferes with and controlls 
 numerous kinds of businesses and trades for no other 
 
 i
 
 CH. I.] TENFOLD DIVISION OF LAW. 67 
 
 reasoD than because the exclusive pursuit of each one's 
 own interest too frequently leads to unnecessary interfer- 
 ence with the interests of others. All these fall under the 
 head of the security of contract and business. 
 
 Seventh division is security of foreigneks. — The last 
 division of the substantive law is founded on a circum- 
 stance common to all countries possessing a tincture of 
 civilization, that of tolerating strangers or foreigners — 
 persons who were not born in the same community, in which 
 they nevertheless for various reasons are found from time 
 to time. Whether and to what extent the municipal law 
 suffers modification when the rights and wrongs of these 
 strangers are dealt with, naturally forms a distinct subject, 
 not flowing out of the former divisions. No law can leave 
 the case of foreigners unprovided for. Their rights and 
 interests may be intermixed with those of native subjects ; 
 but they call for some special treatment, and as a matter of 
 fact occupy the attention of all legislatures. This branch 
 of the law is often called private international law, but 
 the security of foreigners is a more appropriate title, and 
 it is a necessary supplement to all the preceding divisions. 
 It also brings out more distinctly all that relates to juris- 
 diction over subjects natural born, and born in colonies and 
 foreign dependencies. The legislature has for centuries 
 been busy with altering and modifying such common law 
 as barbarous ages and crude ideas of justice allotted to 
 foreigners. The freedom of these to come and go, and 
 buy and sell, was protected by Magna Charta itself^ And 
 numerous statutes down to the present day have kept up the 
 perpetual interest in this subject. 
 
 The division of administrative law is threefold. — The seven 
 divisions now enumerated divide between them the whole 
 substantive law. But there still remains the administrative 
 law, which, as already described, resolves itself into three 
 parts : the judicature, the legislature, and the executive 
 government. They are called administrative law, because 
 they have the relation to the substantive law of means to 
 the end — of machinery to the result achieved. They keep 
 the substantive law in perpetual vigour, defining what is 
 obscure, amending what is defective, and keeping all the 
 great functionaries employed in distributing it within their 
 
 1 Mag. Cliart. c. 30. 
 
 F 2
 
 68 ON THE LIBERTY OF THE SUBJECT. [intro- 
 
 respective orbits. They collect and maintain the materials 
 for keeping the peace within the territory, and represent 
 the empire in all its extra-territorial interests. 
 
 Eighth division of law is into the judicatuke. — The judi- 
 cature is the division of administrative law which contains 
 the distribution of jurisdiction among various courts and 
 functionaries. How judges are appointed, and what privi- 
 leges or peculiarities distinguish them from the rest of the 
 community — what rules they follow in administering 
 justice — hearing parties, excluding irrelevant topics, enforc- 
 ing judgments and sentences. The leading methods resorted 
 to of securing to each the best satisfaction against wrong 
 and the violation of the substantive law, so far as law can 
 give redress, form the eighth division — that of the judica- 
 ture. This division involves also many securities of 
 the individual; but as all these are subordinate to the 
 leading idea of expounding and applying the law, they 
 fall under this division as their natural and appropriate 
 place. 
 
 Ninth division of law is THE LEGISLATUEE. — The legislature 
 is the ninth division of the whole law and includes all that 
 relates to the constitution and working of the three estates 
 of parliament — showing how the members of one branch of 
 the legislature are elected, and what privileges attach to 
 them — how the members of another branch of the legisla- 
 ture are first appointed and afterwards succeed by inherit- 
 ance to their function — how the legislature proceeds in 
 enacting new laws — who are the parties to their enactment — 
 what are the parts of a statute wheu completed and how 
 it is expressed and interpreted — what is, the relation of the 
 legislature towards the subject on the one hand and to- 
 wards the executive government on the other hand. These 
 particulars are included in this division of " the legislature." 
 
 Tenth division is the executive goveenment. — Lastly, 
 the executive government is the keystone of the arch, and 
 includes all that relates to the sovereign and the prerogatives 
 vested in this supreme office — the course of the succession — 
 the appointment of high officers of state, and then- respective 
 functions — the prerogative of pardon, the chief command 
 of the army and navy, the relations of the sovereign 
 towards the subject on the one hand, and towards the 
 legislature on the other hand, the representation of the
 
 CH. 1.] TENFOLD DIVISION OF LAW. 69 
 
 empire in all matters of peace or war, when dealing with 
 foreign countries, and the treatment of foreign subjects and 
 foreign property in times of war. And the government is 
 not entirely imperial, but has subordinate and derivative 
 grades, there being to some extent parts of the legislature 
 and executive government delegated to functionaries and 
 communities under various forms of local self-government, 
 the chief organs of which are municipal corporations, 
 counties and parishes, and sanitary districts. 
 
 Summary of tenfold division of law. — This tenfold 
 division collects and exhausts all the matters which the 
 law deals with in a natural and intelligible order. The 
 law cares nothing for, and has no leisure to ponder over, 
 the metaphysical and philosophical elements into which 
 they may be still further reduced. In the region of prac- 
 tical life, which is that in which the law lives and moves, 
 there are no more simple and more elementary conceptions 
 than these ten to be found. That each individual has an 
 instinctive tendency to take care of his own person, to 
 amass property, to marry, to worship, to think, speak, and 
 make a character to himself, to enter into contracts, to 
 live or hold fellowship with foreigners, to resort to courts of 
 justice, to submit to legislation and to government, cannot be 
 explained by any intuition or by any experience, and must 
 be accepted as postulates. How and under what restrictions 
 these tendencies are regulated and encouraged, constitutes 
 the burden of every code. One code may, more than 
 another, sketch each of these divisions with a freer touch — 
 may leave a blank here, may show a barrier there — may blur 
 the canvas with misshapen forms, may write some edicts 
 in characters of blood, may fill chapters with incongruous 
 and mistaken details. But each and every subject must 
 be treated more or less pointedly, or its place must be 
 marked out. Not one of them can be safely omitted, 
 and it is by the balance of light and shade, of clearly 
 developed forms and the most natural play of human 
 action, that the best code is distinguished. A picture of 
 many hues, of complex and many-sided groups, is the 
 result. It may require a nice appreciation to compare each 
 detail of one code with the corresponding detail of another 
 code ; and it is only by a comprehensive experience of its 
 many points of contact with many minds, that a rational
 
 70 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 estimate can be made of the degrees of perfection attained 
 and attainable. But in every human society a place must 
 be found for each of these ten divisions of subjects, and it is 
 impossible not to find something, however crude, which 
 every human code has to say upon each of them. 
 
 In order, therefore, to make still more clear the fore- 
 going arrangement and distribution of subjects, this 
 "Division of the whole law" will assume the following 
 simple tabular form : — 
 
 I. Substantive Law. 
 
 1. Security of the person. 
 
 2. Security of property, 
 
 3. Security of marriage. 
 
 4. Security of public worship. 
 
 5. Security of thought, speech, and character. 
 
 6. Security of contract and business. 
 
 7. Security of foreigners. 
 
 II. Administrative Law. 
 
 8. The Judicature. 
 
 9. The Legislature. 
 
 10. The Executive Government (including local self- 
 government).
 
 CHAPTEE 11. 
 
 EXPLANATION OF PHRASES AND TERMS USED IN THE LAW. 
 
 Other divisions and terms used hy legal authors. — A defi- 
 nition and a division of the law, however perfect, do not 
 exhaust the requirements of those who make their pre- 
 liminary survey of so wide a subject. There are so many 
 technical distinctions, phrases, and words, which have long 
 been current, and which exercise the reflections of all men, 
 that some notice of these will be useful before we proceed 
 to the particulars of the law itself, in their settled order. 
 Many of these words are the tools of the art, and have been 
 used and applied in various senses, according to the pre- 
 vailing theories of those who have written on legal and 
 political subjects. Some of these distinctions may be 
 found to rest on a mere confusion of ideas, may be super- 
 fluous or misleading, or imperfectly defined. They are, 
 however, sufiiciently interesting or important to require 
 separate treatment. 
 
 Such are the phrases and words — liberty of the subject 
 — political and civil liberty — origin of government — the 
 social or original contract — the divisions into constitutional 
 law, public and private, civil and criminal law — commercial 
 law — law of nations — private international law — law of na- 
 ture — law of God, or divine law — feudal law — civil law — 
 canon law — common law and statute law — written and 
 unwritten law — judge-made law — ^adherence to precedents 
 — legal fictions — law and equity — codification — right — duty 
 — obligation — wrong — crime — felony — misdemeanour. 
 
 Meaning of the liberty of the suhjeet and eivil liberty. — 
 The liberty of the subject is a phrase of the law of England 
 which has acquired great and just renown ; but as it has 
 been made the theme of declamation rather than of strict
 
 72 ON THE LIBERTY OF THE SUBJECT. [intbo. 
 
 legal treatment, it requires some care to discriminate its 
 true import and define the length and breadth of its contents. 
 And as the idea involved in it lies at the root of all natural 
 definitions and divisions of the law, it requires all the 
 more attention in this place. 
 
 Views of Locke, Somers, Beccaria, as to freedom. — Locke 
 says that the end of law is not to abolish or restrain, but 
 to preserve and enlarge freedom, and where there is no law 
 there is no freedom.^ Somers said, that when a people 
 have no assurance of their liberties or lives, but from the 
 grace and pleasure of the governor, they are but beasts of 
 burden ; and by continual base subserviency to their masters' 
 vices, lose all sense of true religion, virtue, and manhood.^ 
 Beccaria, in his masterly way, explains his notion of liberty 
 thus : " The opinion, that every member of society has a 
 right to do anything, that is not contrary to the laws, 
 without fearing any other inconveniences than those which 
 are the natural consequences of the action itself, is a political 
 dogma which should be defended by the laws, inculcated 
 by the magistrates, and believed by the people — a sacred 
 dogma, without which there can be no lawful society — a 
 just recompense for our sacrifice of that universal liberty of 
 action common to all sensible beings, and only limited by 
 our natural powers. By this principle our minds become 
 free, active, and vigorous — by this alone we are inspired 
 with that virtue which knows no fear, so different from 
 that pliant prudence worthy of those only who can bear a 
 precarious existence." ^ 
 
 Other authors of eminence give each his own account of 
 the proper use of the phrases — liberty or freedom, natural, 
 civil, and political : and Blackstone, Paley, Austin, Mac- 
 kintosh, and M'Culloch, may be referred to for valuable 
 observations on this subject.* 
 
 DifficulUj of reconciling current accounts of liberty. — It 
 must be confessed, that their descriptions of civil liberty 
 do not entirely agree, and somewhat bewilder the mind. 
 Blackstone rather unnecessarily introduces, what he calls 
 natural liberty, or the law of nature, as the standard or 
 
 ] Locke, Oil Govt. b. 2, tit. 57. 2 Somers, Sec. of Engl. p. 1. 
 ^ Beccaria, c. 8. 
 
 * 1 Bl. Com. 140. Palcy's Mor. Bliil. b. vi. 1 Austin Jur. 281. 
 Mackintosh, L. of Nat. M'Culloch, Pol. Econ. p. 1, oh. 10.
 
 en. II.] MEANING OF THE PHRASE. 73 
 
 common ground of departure ; but this tends to confuse liis 
 account. Austin seems to view political and civil liberty 
 as something in the nature of a gift from the sovereign 
 government, and as contradistinguished from political or 
 legal restraint. Locke and Beccaria are the writers, who 
 seem to look with the steadiest eyes at the central idea 
 involved. Each writer prefers to explain in his own way 
 a phrase which comes home so forcibly to every one, who 
 has thought of the first principles of society. 
 
 Certain it is, that liberty has been the theme of poets, 
 orators, and patriots for ages, and though vague may be the 
 notion they have attached to it, the liberty of the person, 
 and freedom from imprisonment may be said to be the 
 basis of their declamations. 
 
 Went worth in 1575 told the House of Commons that he 
 had found in a little book of that time the words, " Sweet 
 is the name of liberty, but the thing itself beyond all in- 
 estimable value."^ Sir- Benjamin Ptudyard exclaimed in the 
 great debates in the time of Charles I., that " liberty is a 
 precious thing, for every man may set his own price upon 
 it, and he that doth not value it, deserves to be valued 
 accordingly."^ Sir E. Phillips of the same period said that 
 if we can be imprisoned at the will of another, " why do we 
 trouble ourselves with the disputes of law, franchises, and 
 propriety of goods ? "^ And Pym said, " If the liberties of 
 the subject were taken away, there should remain no more 
 industry, no more justice, no more courage : who would 
 contend, who would endanger himself for that which is not 
 his own ? "* " Freedom," as Dryden said, " was the English 
 subject's prerogative."^ 
 
 1 1 Pari. Hist. 784. 2 3 St. Tr. 173. ^ 3 St. Tr. 66. 
 
 * 3 St. Tr. 342. 
 
 5 North Briton^ No. 45. 
 
 De Tocqueville says : " That which at all times has so strongly 
 attached the aflEection of certain men is the attraction of freedom 
 itself, its native charms, independent of its gifts, the pleasure of 
 speaking, acting, and breathing without restraint, under no master 
 but God and the law. He who seeks in freedom aught but herself 
 is fit only to be a slave." — De Tocquev. France, 606 (tr. by Reeves). 
 
 " The essence of liberty," said Cicero, " is to live just as you 
 please." — Cic. De Off. b. i. c. xx. 
 
 Dunning said that "for the great benefit of the public and indi- 
 viduals, natural liberty, which consists in doing what one Hkes, is
 
 74 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 * 
 
 Liberty of subject arises out of legal restriction. — The 
 
 explanation of the phrase, " liberty of the subject," can 
 scarcely be said to involve much difficulty after the defini- 
 tion and division of the law are settled ; or rather, it is 
 merely the correlative and obverse side of the same idea. 
 It may be vaguely described, as Cicero described it, as in 
 some sense indicating the right to do as one pleases without 
 check or interference. But this is a crude conception, and 
 requires much qualification. The sense of mutual restraint, 
 though unuttered or seldom expressed, grows necessarily out 
 of all associations of human beings, and the law is nothing 
 but an elaborate development and classification of the 
 limits and phases of this self-restraint. Such self-restraint 
 is like an instinct, or like the muscular sense pervading all 
 forms of activity and all modes of conduct. Liberty of the 
 subject is the counterpart of this restraint. Most actions 
 being more or less controlled, nothing is or can be done 
 by any individual member of a community, without some 
 conscious or unconscious regard to the correlative and equal 
 acts and conduct of others. 
 
 Tliere is no absolute liberty. — There is indeed nothing 
 even among the most isolated groups of savage life which 
 approaches to absolute liberty, if such a term be used in the 
 sense of each doing what seems good in his own eyes, 
 regardless of all that is done by others.^ The liberty of 
 
 altered into doing what one ought." — 20 St. Tr. 71. " All antiquity 
 resounded with the fame of the Xanthians and Paterans, whose 
 intense love of liberty led them to prefer total extinction to their 
 subjugation by a conqueror." — Plut. Brut. Appian, B. 4. 
 
 In the debates of 1758 it was said that " liberty consisted in not 
 being obliged to do or suffer anj'thing but under the direction of 
 known laws ; that such as do not inherit wealth are nevertheless 
 heirs to freedom, and they who have no other property have a pro- 
 perty in their libertj^ Indeed such, above all others, may be thouglit 
 to have the best title to liberty, since it is the only valuable enjoy- 
 ment to which they can lay claim." — 15 Pari. Hist. 888. 
 
 1 A traveller has well observed, that the life of a wild beast is one 
 of constant fear and anxiety. Every antelope in South Africa has 
 literally to run for its life once in every two days, and many times in 
 each day starts or gallops under a false alarm. — Trans. Ethn. Soc. 
 The savage is always sus])icious, always on the watch, always the 
 prey of fear, and sees invisible enemies in every bush. An intelligent 
 traveller remarks : " Man in a savage state has little freedom of 
 thought or action, no development of intellect, benevolence, or any
 
 CH. II.] MEANING OF THE PHRASE. 75 
 
 the wild beast is said to be the slavery of fear. Not so 
 with man. The mutual help, the mutual fear, the mutual 
 play of appetites, passions, affections, soon shape with 
 invisible hand the conduct of each, so as to avoid collision, 
 invite help, exchange valuable possessions and offices. A 
 second nature thus grows up, strengthening and expanding 
 rather than suppressing all that is the most cherished and 
 the most intensely enjoyed by the individual. When the 
 liberty of the subject, or civil liberty, is spoken of, it is not 
 meant that he, who possesses it, can do what he likes, but 
 only that he obtains the greatest possible value and benefit 
 out of his own faculties and circumstances. It must be 
 remembered that the more protection is given to each, the 
 more checks must be imposed on all otliers. Liberty can- 
 not be protected, as Bentham said, except at the expense 
 of lilierty.i And as was better said by Sir E. Atkins, " a 
 just law is no restraint to a just liberty ; it rather frees us 
 from a captivity and servitude, namely, to that of our wills 
 and passions." ^ But in a well-devised system of checks 
 and counterchecks, the sense of restraint is lost in the 
 greater intensity and enjoyment of those faculties and 
 tendencies, which are thereby rendered effectual, and made 
 secure, and which are the better part of human nature. 
 Civil liberty, or the liberty of the subject, is not the liberty 
 to murder and plunder, to libel, cheat, and oppress all that 
 stand in the path of selfish ambition, aggrandisement, or 
 indulgence ; it is the liberty to attain the largest measure 
 of all desirable things by means of repressing and regu- 
 lating those incompatible tendencies of others, so far as any 
 human power can repress them. The restraints on men as 
 w^ell as their liberties are, as Burke observes, 'to be reckoned 
 among their rights.^ The means to be used must be such 
 as are not incompatible with the attainment of the same 
 ends by each and every member of the community. Civil 
 liberty is a mixed sentiment, compounded of a sense of 
 mutual restraint, of equality, of justice, and of co-operation.* 
 
 other great qualification, . . The young and weak are helpless ; their 
 laws and customs are as binding as our laws, though handed down 
 orall}'."— 2 Grey's Austr. 217, 219. 
 
 1 1 Benth. W.301. 2 ^ g^. Tr. 1207. 
 
 3 Burke, Fr. Rev. 
 
 * Montesquieu said everyone has given the name of liberty to the
 
 76 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 Much variety may exist in the complex arrangements 
 devised by each nation for conferring the greatest security 
 on the pursuits of its subjects, and it is not surprising that 
 one nation should differ from another in such details. The 
 natural aversion and resentment against bodily pain, im- 
 prisonment, and deprivation of property, and the greatest 
 variety of weapons of self-defence against all evil designs 
 tending to that result, whether on the part of the subject 
 or of the sovereign, but more especially of the latter as 
 being the most powerful, constitute what is usually called 
 in England " the liberty of the subject." 
 
 Liberty 7wt confined to hodily freedom. — The liberty of the 
 subject is thus a phrase not limited to the security of the 
 body, and it was at first used in contradistinction to the 
 encroachments of the crown ; but its essence pervades all 
 the other divisions of the law relating to property and 
 general business. The phrase " civil liberty " is perhaps 
 not so comprehensive, yet it is dissociated from mere bodily 
 freedom, for it embraces all modes of protection by the law 
 against wrong and interference whencesoever proceeding, 
 more especially in relation to the encroachments of one's 
 fellow-subjects. The phrase, " political liberty," again, is 
 that phase of civil liberty which regards the participation 
 of the subject in the machinery of legislation and govern- 
 ment. Such participation is of inestimable importance, 
 for in practice it renders the most peremptory edicts of 
 irresistible power much less irksome. It disarms of its 
 terrors that absolute tyrannical force which in all societies 
 must necessarily be wielded by the sovereign authority. It 
 takes the sting out of that inevitable prostration of the 
 
 government which agrees with his habits or incHnations. — Spirit 
 of L. h. 11 ch. ii. " We are all agreed as to our own liberty. We 
 would have as much of it as we can get. But we are not agreed as 
 to the liberty of others, for, in proportion as we take, others must 
 lose." — 7 Bosw. Johns. 257. 
 
 Liberty is a word used in popular authors very loosely. Even 
 Adam Smith says : " Laws which are in violation of natural liberty 
 are bad," without defining what natural liberty is. — Wealth of Nat. 
 b. 4. ch. i. " Such is the excellency of the English constitution that 
 the meanest subject is not beneath the protection of the laws, nor 
 the highest beyond their reach. Thus to be governed is the full 
 perfection of civil Hberty."— Per Sir F. Norton, R. v L. Byron, 19 
 St. Tr. 1185. ^ > .X ,
 
 CH. 11.] MEANING OF THE PHRASE. 77 
 
 individual will which all men dislike, but cannot escape ; 
 and converts into willing obedience what otherwise would 
 be unrelenting antipathy and undying resistance. 
 
 Liberty of subject and ijolitical liberty not estimated hj 
 number of their restraints. — The liberty of the subject and 
 political liberty thus differ from each other only in giving 
 more or less prominence to one or other of the constituent 
 elements. They both denote the greatest protection ex- 
 tended to the body, the property, and ordinary pursuits, 
 which can be attained in social life — the liberty of shaping 
 one's conduct by laws confessedly just. When laws are 
 originally or mainly framed by a large body of intelligent 
 and select representatives, who declare them fit to be 
 obeyed and enforced upon all, this is the nearest approach 
 to self-made laws. But civil liberty is not to be esti- 
 mated or measured solely by the number of the restrictions 
 embodied in the laws. The mere number of these signifies 
 little, for their value is often enhanced by multiplicity 
 and variety. One restriction more or less is immaterial, 
 when the whole fabric of the structure is instinct with 
 freedom. This liberty, the reflex of the law, is the product 
 of many forces — the result of incessant, far-reaching, and 
 long-continued efforts of legislation — never attaining, yet 
 ever approaching perfection. In short, the liberty of the 
 subject is only another name for the highest security 
 attainable in any community for the body, the estate, 
 and the employments of life, more especially as these 
 are secured against arbitrary imprisonment, against con- 
 fiscation of property, and against suppression of free 
 thought and speech. 
 
 Liberty of subject is counterpart of legal and self-imposed 
 restraints. — The liberty of the subject, the natural fruit of 
 the law, is said to be a government by laws, and not by 
 men. It is entirely the counterpart and correlative of the 
 restraints imposed by tlie laws on the rest of the com- 
 munity for the benefit of each individual. Such is the 
 liberty of each individual to acquire and enjoy such rights 
 as he deems most valuable, and which the laws have 
 expressly secured for him by corresponding restraints put 
 on aU his fellow-subjects. These laws take care that none 
 shall imprison or control him, except for causes well- 
 known, and which he himself acknowledges in the abstract
 
 78 ON THE LIBERTY OF THE SUBJECT, [intro. 
 
 to be just, and under warrants which issue from proper 
 authority. They take care that he shall enjoy a large share 
 in making and amending the laws, for laws self-imposed 
 are always the least irksome. When thus originated and 
 moulded — instead of being emblems of tyranny, the laws 
 seem the emanations of the individual will, which it is the 
 interest and pride of each and all to array themselves in 
 supporting.^ 
 
 Distinction of absolute and relative rights. — Here may be 
 noticed a distinction which arises in some degree out of 
 the liberty of the subject, and which some authors have 
 attempted to draw between absolute and relative rights. 
 Such a distinction will be seen at once to be founded on a 
 confusion of thought. Strictly speaking, all rights are 
 relative, that is to say, they necessarily presuppose a society 
 of individuals, with regard to whom alone rights have 
 existence. If there were only one individual in the world, 
 he would eat and drink, and sleep, and probably would 
 exercise his faculties in some way. But he could neither 
 plunder nor murder, could neither slander nor defame, could 
 neither buy nor sell. He would have no rights, nor w^ould 
 he have any wrongs. He would simply satisfy his personal 
 wants if he could, and having no competitors or disputants, 
 he could neither sue nor be sued. To speak of absolute 
 as something different from relative rights is altogether 
 unmeaning. All rights are equally the accompaniments 
 
 1 "As popular liberty without government will degenerate into 
 license, as government without sufficient liberty will degenerate into 
 tyranny, they are mutually necessary to each other ; good govern- 
 ment to sujiport legal liberty, and legal liberty to preserve good 
 government." — Bolingbroke, Fatriot King. 
 
 "The difference between free and despotic governments is not 
 that the sum of liberties which the former leaves to its subjects 
 exceeds the sum of tlie liberties which are left to its subjects by the 
 latter. The excess in the sum of the liberties which the former 
 leaves to its subjects may be purely mischievous. It may consist 
 of freedom from restraints which are required by the common weal, 
 and which the government would lay upon its subjects if it fulfilled 
 its duties to the Deity. In consequence, for example, of that mis- 
 cliievous freedom its subjects may be guarded inadequately against 
 one another, or against attacks from external enemies. ... A free 
 government leaves or grants to its subjects more of the political 
 liberty which conduces to the common weal." — 1 Austin, Prov. Jur. 
 p. 283, 2«5.
 
 en. n.] THE ORIGINAL CONTRACT. 79 
 
 of society, and all are alike enforceable by some legal 
 procedure, otherwise they would not be rights at all. They 
 may differ in intensity or in relative value and importance, 
 accordino- to the estimation of the individual ; but in all 
 essential particulars each is as absolute as the other. All 
 that Blackstone probably really meant by the distinction 
 between absolute and relative rights was this, that, of those 
 rights which regard the person, some are common to all 
 members of the commonwealth wdthout exception, at least 
 to all adult members ; while others are conspicuous only in 
 classes and sections of people, or rather they become more 
 prominent in some circumstances than in others.'^ 
 
 Natural riglds of man. — Again, it has sometimes been 
 said that the three natural rights of man are life, liberty, 
 and property, to which Bentham justly adds rej)utation. 
 But this involves some confusion of ideas, for liberty 
 necessarily includes life and property as well as reputation, 
 and many things besides. Whatever be the law^s under 
 which human beings live, one of their essential tendencies, 
 and indeed an iiLse2:>arable quality of all human beings, is 
 to cherish and defend life, and to create, accumulate, and 
 defend property, and to aspire to various other enjoyments. 
 Liberty is the radical condition of human life, and en- 
 grosses all the faculties and develops the habit of pre- 
 serving life, property, reputation, and the general rights 
 and results of all kinds of labour. 
 
 Origin of government, social contract, and divine, rigid. — 
 The origin of government and civil society has been a 
 fruitful speculation in all ages, and many volumes have 
 been written to explain by what stages each generation has 
 reached and matured the complicated system of mutual 
 checks, under which modern nations are well pleased to 
 live. Philosophers have often suggested that in prehistoric 
 days the community first chose the tallest and strongest man 
 for a king, as Herodotus says the Ethiopians did in the time 
 of Cambyses.^ Such would be one who was pre-eminent for 
 physical prowess — who had slain his thousands in battle, 
 
 1 Blackstone, taking up Coke's expression as to a prior period, 
 says that the absolute rights are declared by the Act of Settlement 
 to be the birthright of the people of England. — 6 Rep. 231 ; 1 Bl. 
 Com. 127. This was obviously a figure of speech, but a good one. 
 
 2 Herod, b. 3.
 
 80 ON THE LIBERTY OF THE SUBJECT. [intro, 
 
 and led the war-dance in intervals of peace. The mere 
 habit of command and obedience may have induced the 
 next most able and active of the same family to be pro- 
 moted to the vacant chiefship, and then the choice may have 
 finally settled for better or for worse in one tribe. Coun- 
 cillors and wise men would then gather round their leader, 
 and fence all the avenues of tyranny about, till tier upon 
 tier of caste and routine should make heavy and stable the 
 seat of power. There is much fancy blended with all 
 such speculations, and each has his own train of ideas 
 and theories to smooth the way through difficulties, and 
 trace the secret links of the chain of order. Much must 
 in such a search turn on the point of departure, and all 
 prefer a stage of barbarism to start from. How the patri- 
 arch from a huntsman became a shepherd, a husbandman, 
 a trader — how one by one families flocked to walled towns, 
 and a network of local government spread over the land — 
 how units became tens, and tens became hundreds, and 
 hundreds became thousands, till each tribe became merged 
 in the crowd, and in the maze nothing but units could at 
 length be clearly distinguishable, and thus became a new 
 point of departure, each being then treated as the radical 
 l3asis of legislation, and of social merit and responsibility. 
 
 Theory of growth from harharisin. — The theory of natural 
 growth and development out of barbarism has, however, many 
 difficulties. Tribes have for hundi-eds of years shown no signs 
 of advancement, have lacked all invention in common imple- 
 ments — grown more stohd and mechanical — have stagnated 
 in all the isolation of barbarism, and lost almost the 
 lineaments of humanity.^ A descent from higher to lower 
 grades of barbarism is not only in accordance with obser- 
 vation, but is as inscrutable' as inevitable in theory. 
 Double difficulties surround every explanation, and some 
 read backwards and some read forwards the legends of the 
 past. It is enough, however, for lawyers to surrender all 
 such speculations to the philosophers, and to know this and 
 
 ^ Humboldt said he could not make out whether the savage state 
 was a dawn or a sunset of better days : but preferred the latter 
 hypothesis. NiEBUHR held tliat savages were the remnants of 
 civilised tribes driven to the woods, and who had gradually forgot 
 the arts of settled life. And Wiiatkly remarks that there is no 
 record of savages ever civilising themselves. — Wltaiely, Ess. Civilis.
 
 CH. II.] DIVINE RIGHT. 81 
 
 this only, tliat no society can exist without the rudiments 
 of laws and of government.^ Laws, though often at first 
 seemingly the sport of chance, are for a time credulously 
 believed in ; till simple faith is gradually transformed into 
 scepticism, and reiiection into criticism ; and the era of 
 reform slowly dawns over the torpid generations, quicken- 
 ing their intuitions till they find new aims, methods, and 
 solutions for overcoming the many varieties of evil, M'ant, 
 and oppression. Societies, as Bolingbroke remarked, are 
 " begun by instinct and are improved by experience." ^ In 
 all stages of advancement, indeed, there are some landmarks 
 not to be overpassed, some restraints inevitable and irre- 
 sistible, and in all forms of government there is much of 
 tlie machinery common, because human nature is much 
 the same in every clime, and moves under the same influ- 
 ences. But no human sagacity or learning has yet made 
 plain, why or how civilisation has quickened most in some 
 climates, and among some races, however ingenious may 
 be the theories which the vanity and self-glorification uf 
 nations put forth on this subject. 
 
 Theory of divine, right and original contract. — Leaving, 
 however, as inscrutable the historical origin of laws, and 
 their earliest progress, there is still some mystery even in 
 the later stages. Philosophers and divines have discussed 
 two opposing theories — one of divine right, and one of 
 social or original contract. One holds that the governor 
 is heaven-descended ^ — to be received without missiviuLr 
 
 ^ See ante^ p. 6, as to savages without laws. 
 
 * Bolingbr. Frag. x. 
 
 " It is reasonable to conclude that society was coeval with man, 
 and that the saA-age in his woods exhibits the picture of fallen, 
 degenerate man in an unnatural state — the ruined, degraded species 
 rather than his living image in the infancy of the world." — Filanghri, 
 La Sci. (1. LegiaJ. — "The law of nature is inseparable from the nature 
 of thinking l)cings : it subsists and will subsist for ever, in defiance 
 of the passions which obstruct it, the tyrants and impostors who 
 would obliterate or anniliilate it in blood and superstition." — Ibid. 
 eh. iv. 
 
 ■* " I believe that no creature now maintains that the crown is held 
 by divine hereditary and indefeasible right."' — Burke, Fr. Rev. " The 
 senseless plea of divine and indefeasible right, repugnant to nature 
 and common sense, implies that man can have a property in his 
 fellow-creatures." — fox. Hist. Jas. II. " The wild and absurd doctrine 
 of divine right.'— 1 Bl. Com. 219. 
 
 VOL. I. G
 
 82 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 and obeyed without question — against whom to hesitate is 
 treason, and to rebel is blasphemy. The other holds that 
 all human associations are resolvable into a contract more 
 or less akin to what is going on day by day between man 
 and man, having a beginning and an end, a subject-matter 
 and a remedy. 
 
 Between these extremes most men vibrate, and it is a 
 matter of temperament, of age, of prosperity, of education, 
 to whicli side each will most incline. Both theories have 
 merits, and both have defects. In all ages and all times 
 nature seems to predispose a sufficient array of contem- 
 poraries, so as to weigh evenly in these opposing scales. 
 To assert or believe that a governor is placed over the 
 governed, and maintained there irrespective of human in- 
 fluences and human wants, and that no derangement in 
 the mutual adaptation justifies a change in the governor, 
 in his prerogatives and liis l^duties, is a dogma which it is 
 too late in the world's history to maintain. On the other 
 hand, to say that no respect is due to tradition, no virtue 
 lies in habitual obedience — that there is no merit in ad- 
 hering to good forms till better are made clearly apparent 
 — that there is no natural harmony between a thoughtful 
 governor and generous, industrious, and well-conditioned 
 subjects, is equally far from the truth.^ There is a divine right 
 on the one side as well as the other. Each theory contains 
 but half a truth, and their conjunction is needed to reconcile 
 both phases of human life. What is clear is, that there is 
 and can be no mutual relation or dealing between man 
 and man on any subject, but that which is resolvable 
 more or less into contract. "WTien slavery ceases, contract 
 
 DoMiTiAN, in European systems of government, seems entitled 
 to some credit as to the theory of divine riglit. He insisted on his 
 officials beginning, " Our Lord and God conunands so and so." — 
 Suet. Dom. 
 
 1 " The comfort and basis of all governments is the mutual good 
 afFection that subsists between the magistrate and the people. If, on 
 the one hand, the magistrate does not love the people, or if, on the 
 other hand, the people do not look up to their magistrate with love 
 and respect, that country never can po on in comfort and prosperity." 
 —Per Ronlce, J. 25 <S7. fr. 11 49. " The subjects have, in their several 
 public and private cai)acities, as legal a title to what are their rights 
 oy law as a prince to the possession of his crown." — Gen. Stanhope^ 
 K. V Sacheverell, 5 St. Tr. 5.
 
 cii. II.] THE ORIGINAL CONTRACT. 83 
 
 necessarily begins. The most divine of divine rights is, 
 in modern times, to improve and amend the municipal 
 laws whencesoever derived, until all modes of oppression 
 and ^\Tong are made less oppressive and less wrongful — to 
 he satisfied with no limit to the amelioration of every 
 chapter and verse of the law, till it approaches nearer and 
 nearer to the standard of justice which every individual 
 carries in his own breast, and which advancing education 
 and experience help him to define more and more clearly 
 tlie hio'her he rises in the scale of civilisation. 
 
 Opponents of the theory of original contract. — Some A^ainly 
 imagine that they reduce the theory of original contract to 
 an absurdity, when they assert that no record exists of a 
 large multitude of adult men and women co-equal in rights 
 and powers meeting in a sj)acious plain, and choosing a 
 governor and bargaining for their fealty on terms and con- 
 ditions. They affect to pronounce all this an idle fiction. 
 It is true enough that, except perhaps in very recent times, 
 no human society was ever found in a state of disintegra- 
 tion, where the co-equal units marshalled themselves for 
 the first time and at once in files and .squares, and made up 
 the machinery of a completed organisation. As Montes- 
 quieu observed, man is born in society, and there he re- 
 mains. Every single member is born into society and 
 dies out of it, and there is no protocol or preliminary 
 treaty made at his entry, nor is there at his exit any formal 
 dissolution of partnership. At his birth each individual is 
 bound hand and foot by heavy engagements made by his 
 predecessors, and Ms likings or dislikings are wholly unat- 
 tended to. The social contract has for him neither a be- 
 ginning nor an end. He did not originate it, and cannot 
 put an end to it. It has an ever-shifting foreground of 
 terms and conditions — a remedy, which, if there is any, 
 none can, single-handed, enforce. It may be less a theory 
 than a figure of speech ; it may be an apt illustration, thcugh 
 not a definition.'- It has at least given permanent satis- 
 
 1 Locke saj's : " If man be once allowed to be master of hie own 
 life, the despotical arbitrary power of his master ceases. He that 
 is master of himself and his own life has a right, too, to the means 
 of preser\ang it : so that as soon as compact enters, slavery ceases, 
 and he so far quits his absolute power and puts an end to the state 
 of war, who entei's into conditions with his captive." — Treat. Gov. 
 p. 2, ch. sv. § 172. 
 
 G 2
 
 84 ON THE LIBERTY OF THE SUBJECT. [intuo. 
 
 faction to the understandings of successive generations of 
 English subjects, and has withstood the assaults of all 
 the philosophers.'' Magna Churta partakes more of the 
 form of a contract than a deed of gift. The Petition of 
 Ei^ht was a statement of terms and conditions assented to 
 by the king, which is also in the form of a contract.^ The 
 
 " Witli the enemies of freedom it is a usual artifice to repre- 
 sent the sovereignty of the peoj^le as a licence to anarchy and 
 disorder. But the tracing up civil power to that source will not 
 diminish our obligation to obey. It only explains its reasons and 
 settles it on clear, determinate principle. It turns blind submis- 
 sion into rational obedience, tempers the passion for liberty with the 
 love of order, and places mankind in a happy medium between the 
 extremes of anarchy on the one side, and oppression on the other. 
 It is the polar star that will conduct us safe over the ocean of 
 political debate and speculation, the law of laws, the legislator of 
 legislators." — R. Hall, On Freedom of Press. 
 
 Hume affects to demolish the fiction of an original contract by ask- 
 ing for the page of history in which it is recorded. — Treat. Hum. 
 Nat. vol. iii. Hume's Ess. p. 2, § 12. 
 
 Bentham thinks Hume had exploded the fiction, but adds much 
 of his own to the same effect, and resolves all into the principle of 
 utility.— 1 Benth. Works, 269. 
 
 Lord Brougham says the doctrine of utility explains the origin of 
 society better than an original contract. — 1 Brougham, Pol. Phil. 51. 
 J. S. Mill says the same. — Mill, On Lib. 185. 
 Humboldt says " it is useless to derive the obligation to submit to 
 punishment frouT the original contract, for every criminal could 
 escape his punishment, if, before undergoing it, he separated himself 
 from the social contract, as in the voluntary exile of the ancient 
 republics." — Humboldt, Sphere of Government. But this is running 
 away with the analogy of a private contract instead of contemplat- 
 ing the substantial truth it embodies. 
 1 1 Stubbs's Hist. 530. 
 
 ■-^ The Bishop of Ely saiil " the making of new laws was as much a 
 part of the original contract as the observing of old ones." — 5 Pari. 
 Hist. 75. And Sir G-. Treby said the coronation oath obliges the 
 sovereign to consent to such laws as the people shall choose. — 5 Pari. 
 Hist. SI. And the same was the view of L. Somers. — 5 Pari. Hist. 
 204. It is true that in point of form the House of Commons refused 
 to state this plainly. — 4 Camith. Chrs. 100. 
 
 The historians of Arragon, who said they had a chief justice, who 
 conti-olled king and subject alike, had a form at a coronation which 
 was the [ihiinest illustration of the social contract ever adopted. 
 After the king swore to maintain the laws, the assembly repHed, " We, 
 who are as good as you, have taken you for our king and lord so long- 
 as you respect our laws and liberties, and no longer." — 8 Uiiir. 
 Mod. Hist. 
 
 At tl)u comnation of Henry V. the Lords and Commons had such
 
 CH. II.] THE ORIGINAL CONTRACT. 85 
 
 coronation ceremony is a form of contract thinly disguised. 
 The Eevolution settlement was adopted expressly on the 
 theory, that the original contract was broken by the abdica- 
 tion of James II., and another was substituted. On the 
 very pillars of the commonwealth this phrase has been 
 written large, and deserves to be treated tenderly. Even 
 if it be a fiction, it is irrepressible, and has become ingrained 
 as an inseparable condition of English political thought. 
 The United States of America also bear on the face of their 
 constitution an original contract, nnd some modern nations 
 have substantially gone through the same process of resolv- 
 ing themselves into first principles, and then recombining 
 under a new origiual contract, adopting many of the old 
 terms. ^ 
 
 confidence in him, that they offered to swear allegiance to him before 
 lie was crowned, or had taken the customary oath to govern accord- 
 ijig to the laws.— 1 Purl. Hist. .319. 
 
 ^ Lord Clarendon said the phrase " original contract " was a new 
 one, taken from some late authors, and the very phrase might bear a 
 great debate. — 5 Pari. Hist. 73. The idea was, however, old enough. 
 Lycurgus's ordinances were in the form of a solemn contract, to 
 which the gods were parties, as well as the people and the sovereign 
 power. — 2 Grofe's Greece, 462. And Aristotle's definition of law is 
 that it was a declaration emanating from the common consent of the 
 people. — Ante, p. 16. 
 
 The President Bradshaw told Charles I. that there was a contract 
 find a bargain made between the king and his people. — 4 St. Tr. 
 1013. And Sir R. Phillips, in Darnell's case, had argued on this 
 footing.— 3 St. Tr. 05. 
 
 Milton says men at first agreed by common league to bind each 
 other from mutual injury, and ordained some authority to restrain by 
 force and punishment what was violated against peace and common 
 right. — Milton's Ten. of Kings. 
 
 Erskine said : " The greater as well as the lesser societies of man- 
 kind are held together by social compacts, and the government of 
 which you are a subject is not the rod of oppression in the hands of 
 the strongest, but is of your own creation — a voluntary emanation 
 from yourself, and directed to your own advantage." — Ersh. Speeches. 
 
 Lechmere said : " The original contract is an eternal truth, essential 
 to the government itself, and not to be defaced or destroyed by anj- 
 force or device. . . . Such was the genius of a people whose govern- 
 ment was built on that noble foundation — not to be liound by laws 
 to which they did not assent. Muffled up in darkness and supersti- 
 tion as our ancestors were, yet that notion seemed engraven on their 
 minds, and the impressions so strong that nothing could impair them." 
 —SachevereWs Case, 15 St. Tr. 62. 
 
 The University of Oxford once said, it is true, the original contract
 
 8i5 ON THE LIBERTY OF THE SUBJECT. [inteo. 
 
 Reason why theory of original contract keeps its ground. — 
 The reason why the theory of the original contract can never 
 cease to be satisfactory is, that nothing else can explain and 
 justify the perpetual desire of each individual to adhere 
 to the laws, and yet to improve upon them, for all laws 
 are relative to the wants of man, and no one man is ac- 
 knowledged to be so absolute over all the rest as to sup- 
 press this desire. The terms of a continuing contract are 
 referable to the growing consciousness that the condition 
 of all can be bettered by expanding and adapting these 
 terms to new cu'cumstances and new -views, such as come 
 alike to all, and in modifying which all can or may take 
 some part and have some voice. The contract may be made 
 for each at birth by agents appointed by nature itself. 
 The contract may not be terminated till death. The 
 remedy may be not so much by reference to the law that 
 exists, as to that which may grow out of improvements set in 
 motion by common consent. In short the original contract 
 is a continuing contract made for each at his birth, and 
 lasting for life, with a proviso to refer all disputes to the 
 law of the present, and with the soothing knowledge that 
 all the parties may by some act of co-operation obtain a 
 better law of the future. In this sense the original contract 
 must always recommend itself to the understanding as a 
 happy phrase or apologue, sketching the fluctuating rela- 
 tions between members of a commonwealth — between sub- 
 ject and sovereign — between subject and subject. It catches 
 the attitude of equality, where each stands at arms'-length, 
 claiming a voice in the solution of every difficulty and 
 dispute. Jt thus satisfies the profoundest reflection and 
 finds an echo in the general conscience, suggesting whole- 
 some thoughts to all alike.^ 
 
 was a daniiiiible doctrine. — 15 St. Tr. 255. And Convocation, in 
 IGOG, asserted that it was a great error to dednce civil power from 
 tlie people, and not from God's ordinance. — 1 Hallcan, Const. H., 3'22. 
 
 WllEWELL, however, defended the theory of original contract as 
 a convenient mode of explaining the nmtual relations of the governed 
 and governor. — Elcm. of Alor. 
 
 1 It would have been a much more effective mode of exploding 
 the theory of an original contract, if political philosopliers like Boling- 
 broke and Hume, Bentham and Austin, Lord Brougham, Mill, and 
 others, instead of treating it as a conclusive argument, that such 
 contract is not a historical fact, had instituted a detailed comparison
 
 CH. 11.] CONSTITUTIONAL LAW. 87 
 
 Distinction of constitutional laiv. — Some authors have 
 called part of the law by tlie name of constitutional law,ljeing 
 that which involves what they deem certain fundamental 
 principles. Under this head are included the leading 
 doctrines touching the relations between the government 
 and the subject — the protection of the weaker against 
 the stronger — the machinery which guards each subject 
 against arbitrary imprisonment — tiie means of giving voice 
 to grievances and of securing a fair trial in case of charges 
 being made or insinuated. This, however, is but a vague 
 distinction, for the vital and essential basis of liberty 
 underlies not only these but most of the other branches of 
 the law. Some of the topics may be intensely interesting 
 to the majority of the people, not merely for what they are 
 worth, but for the many struggles that led to their final 
 settlement. Yet it is only a question of degree and nothing 
 more, which distinguishes constitutional law from the rest 
 
 between it and an ordinary contract, so as to expose the want of 
 analogy between them. This might have been done as follows, and 
 Burke, in his " lleilections on the French Revolution,"' notices sojne 
 of the points. In an ordinary contract both parties have an option 
 and a power of refusing to enter into it ; in the original contract 
 tliey have no option, and are involuntarily entangled in it. In the 
 ordinary contract the parties bind each other only during their lives, 
 and seldom involve their heirs and executors, except for purposes 
 of winding up tiie contract ; in the original contract the unboni 
 descendants to the remotest generations are equally included. In 
 the ordinary contract there is some specific subject-matter to which 
 it is confined, and it usually deals with an existing state of things ; 
 in the original contract botii parties contemplate all the changes that 
 shall ever happen, or shall ever be made in the law, and their nnitual 
 relations. In ordinary contracts there is a definite remedy (other 
 than fighting, as it would be in a state of nature), namely ,_ the 
 power of rescinding it, or compelling the party wlio commits a 
 breach to pay damages; in the original contract there is no definite 
 remedy, no rescinding, and no damages are given or received. 
 
 Thus all the constituent elements of an ordinary contract are 
 wanting in the original contract ; but, notwithstanding this draw- 
 back, the latter may be tiie best mode of describing the mutual 
 relations and attitudes of the parties making up a political society ;_ 
 and other theories are open to greater difficulties and absurdities if 
 tested in the same manner. The law of nature, in which all the 
 above writers would probably believe as an unquestionable verity, is 
 exposed to precisely the same objection, namely, that it is not a 
 historical fact, and yet this objection seems not to have occurred to 
 them.
 
 88 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 of the law. All brandies of the law are more or less 
 vital and interesting, and if some persons are more impressed 
 by one chapter than another, this is too capricious a basis 
 for a separate division to rest upon. Whatever relates to tlie 
 government and to tlie legislature is only important as 
 means to an end. In all tlie ten divisions of the law al- 
 ready enumerated there are matters of vital and enduring 
 moment to each and all, and to single out some of these and 
 call them constitutional law, however popular and useful 
 such a collection may be, makes only a fanciful distinction 
 without a difference. No such distinction can be recognised 
 in any methodical distribution of the whole law. 
 
 Distinction into j^uhlic and private latv. — Some writers, 
 following ancient aiithorities, divide law into public and 
 private law. Public law, which by some is said to in- 
 clude constitutional law, is that law which relates to 
 matters of public utility, and private law to be that which 
 relates to matters of utility to individuals only.^ Bacon 
 seemed to approve of this as a good division, and in 
 public law he included criminal law, ecclesiastical law, 
 magistrates' law, politic law relating to the public peace 
 and wealth.2 This, however, has been justly said to be an 
 unsubstantial difference, for all law must necessarily be of 
 public utility, even though it relates in most of its aspects 
 to the rights and property of individuals. The word public 
 has little or no meaning as contra-distinguished from 
 private law. All law is public in the sense, that the public 
 or all the individuals composing the commonwealth are 
 interested in each and every word of the law, for though 
 each may come within the scope of only one part of it, still 
 the law is open to all alike, according to the circumstances 
 and situations which each may fill from time to time. 
 And for the same reason all law is private, inasmuch as 
 every or any part of the law may be brought to bear on each 
 individually, and some must necessarily do so. Tliere is 
 no such thing as abstract law. All law touches some one or 
 more individuals in one shape or another, and at some point. 
 The public is merely the aggregate of the individuals. 
 Even a private act of parliament, though intended primarily 
 for the benefit of one individual, is of interest and import- 
 
 ^ Demost. Timocr. ; Just. Inst. 1, 1, 3. '^ 7 Bac. Wodcs, 733.
 
 en. II.] PUBLIC AND PRIVATE LAW. 89 
 
 ance to the whole public, because p.x hypotliesi without that 
 private act justice for that individual could not have been 
 attained, and there is no object or merit in law at all, if it do 
 not satisfy or profess to satisfy the sense of justice common 
 to all men according to their respective situations. If, how- 
 ever, the words " public law " be used to indicate only those 
 rights, powers, and duties, which flow directly out of certain 
 offices connected with the government, the legislature, or 
 the legal profession, such as the sovereign, the houses of 
 parliament, the judges of the land, and legal and ministerial 
 officers generally, and if private law means only those other 
 rights and duties arising between individual and individual, 
 the distinction is still vague and unsubstantial. For all 
 that requires to be treated of under such heads are more 
 correctly referable to the other main branches of the law, 
 namely, the laws relating to the judicature, the legislature, 
 and the government on the one hand, and the substantive 
 laws relating to the person and to property, and the other 
 heads enumerated. 
 
 Yet many legal authors make the division into public 
 law and private law a leading division, and under the 
 former branch include all that relates to crimes and 
 criminal procedure, to highways, and things unappropriated 
 or used by the M-hole public, thereby singling out from a 
 great variety of subjects things that have no substantial 
 value except as incidental to the primary rights and 
 liberties of the normal man. If the words "public law" 
 be deemed to include only those rights, duties, and powers 
 connected witli the judicature, the legislature, and the 
 government, and which are often called political rights, then 
 they are treated by some authors as only a branch of the law 
 of persons. Hale includes all these subjects except crimes 
 in his law of persons. Blackstone treats crimes as public 
 MTongs, and makes them a separate division. Austin, after 
 describing public law as the name given to rights, duties, 
 and capacities of political superiors, ends by including it 
 in his law of persons.^ 
 
 The division into public law and private law is obviously 
 unsubstantial, being founded on the misconception, that 
 the public are not equally concerned in all law, though 
 some rights are more precious than others, and touch some 
 
 1 2 Aust. Prov. Jur. 775. See Savigny's division, ante, p. 50.
 
 CO ON THE LIBERTY OF THE SUBJECT. [intro^ 
 
 individuals more closely tlian the rest, and though the 
 remedy for their violation differs in its severity of punish- 
 ment, and in the procedure for v^orking that punishment 
 out. 
 
 Distinction of civil and criminal law. — Another 'division 
 of the law often put forward is that which is called civil 
 and criminal law. According to Blackstone and other 
 writers, civil law includes all iujuries and rights which 
 concern individuals only, while crimes are public wrongs, 
 and affect the whole community. This is, however, a 
 distinction altogether untenable, because it overlooks the 
 fact that the community consists merely of individuals, and 
 because it is founded only on the means or method of 
 redressing the violation of legal rights. All civil remedies 
 are just as much matter of public concern as criminal 
 remedies, for without both the right would not be made 
 effectual, and the object of both is precisely the same, 
 namely, to secure and protect the right, whatever it may 
 be. The one is often supplementary to the other. The 
 only difference consists in the degree or severity of the 
 punishment imposed, or in the manner of dealing with the 
 author of the violation of the right. The protection of 
 any right can only be secured by the law through the 
 medium of inflicting punishment of some kind for its 
 violation, when such violation actually occurs, for it is the 
 peculiar province of rational beings in the calculation of 
 consequences to frame their conduct so as to avoid doing 
 certain things, because if they do them, a specific dis- 
 agreeable consequence, called punishment, will follow, 
 whether in the shape of death, imprisonment, fine, or 
 compulsory deprivation of property. Whether the highest 
 or the lowest of these degrees of punishment or conse- 
 quences follows, depends on the primary right assailed and 
 the manner and extent of the assault ; but all this, being 
 only machinery, is subordinate to the one thing in view, 
 namely, the preservation and protection of that right. 
 Thus, if my body is injured, this injury may be of all 
 degrees from extinction of my life down to the smallest 
 interference with my person of which the law takes cogni- 
 sance, and for which any redress at all will be given. If 
 my life is destroyed, the conseijuence to the offender may 
 be capital punishment or imprisonment. If my peison is
 
 CH. II.] CIVIL AND CEIMINAL LAW. 91 
 
 •wounded or injured to some serious extent short of death, the 
 punishment will be imprisonment or fine of the person who 
 wounded or assaulted me. If, again, my person be merely 
 touched, or assaulted, or beaten, to the very smallest extent 
 cognisable by the law, there may be no imprisonment, but 
 merely a payment to me individually of a sum of money 
 in the name of damages. In the two former cases the 
 offence is called a crime, and the punishment is called a 
 criminal punishment, and the control over the enforce- 
 ment of such punishment is not left entirely to the person 
 injured ; while in the last case the offence is called a mere 
 civil injury, and the punishment is called a sum of damages 
 awarded to me for my own use, and the enforcement of 
 which is left entirely to my individual discretion. 
 
 But whatever be the degree of injury to my person, and 
 whatever be the degree or mode of punishment or redress 
 for such injury, they are all mere modes of protecting tlie 
 primary right which I have to the security of my person. 
 The great object of the law in all the cases is to secure 
 that primary right, for it is deemed to be the surest way 
 of preventing invasions of that right to proportion the 
 punishment as nearly as possible to the violence or degree 
 of the attack. And on this view Pratt, C. J., observed that 
 damages are designed not only as a satisfaction to the 
 injured person, but likewise as a punishment to the guilty, 
 to deter from any such proceeding for the future, and as a 
 proof of the detestation of the jury to the action itself.-^ 
 
 1 Wilkes y Wood, 11) St. Tr. 1167. 
 
 On this subject Dumont justly remarks that " the civil code is at 
 bottom only tiie penal code under another aspect : it is not possible 
 to understand the one without understanding tlie other. To cuuunit 
 an oflEence is, on the one hand, to violate an obligation, on the other 
 band a right. To conunit a private oit'once is to violate an obligation 
 due to an individual — a riglit which he has over us. To couunit a 
 public oll'ence is to violate an obligation due to the public — a right 
 which the public have over us. Civil law is therefore only penal 
 law considered under another aspect. If I consider the law, at the 
 moment it confers a right or imposes an obligation, I consider it 
 in a civil point of view. U! I consider the law in its sanctions, in 
 its effects, with respect to a violated right or broken obligation, I 
 consider it in a penal point of view." — 1 Benth. Works, 299. 
 
 Lord Kaimks said criminal law was of later growth than civil 
 law. GuizoT says tliat all barbarians begin with a penal code which
 
 92 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 Distinction of criminal law useful only for practical pur- 
 poses.- — Yet so much consequence has often been attri1.)uted 
 hy legal writers to the means or method of protecting the 
 person and property against the more violent offences and 
 misdeeds, that they are singled out as a class by themselves 
 and called crimes, chiefly because the mode of procedure and 
 the mode of punishment are different ; wliile as regards the 
 lowest and most trivial of thase assaults, they are called 
 merely civil injuries, and are redressed by an action at law. 
 The distinction between civil and criminal law is thus 
 founded merely on the procedure by which the violation 
 of tlie right is redressed, and on nothing else. It is true 
 some rules of that procedure lie so deep and are so inter- 
 woven with the most tender of all the liberties of the 
 subject, that though the division is altogether subordinate, 
 and not primary, yet the incidents surrounding the course 
 of procedure are of the first importance. The law shows 
 its sense of the distinction between the degrees of mis- 
 conduct involved in the criminal and the civil acts 
 respectively by attaching a severe and degrading punish- 
 ment to the former, and entrusting the prosecution, at 
 
 gradually changes into a civil code in many of its parts. — 2 Guizot, 
 Civ. Fr. Lect. 9. 
 
 Blackstone admitted that the criminal law in his time was in a 
 more crude state than the civil law. 
 
 It may be said that all law is at first civil law, that is to say, all 
 ofEences and wrongs are mere matters of money between the two 
 parties. The notion of singling out some offences and saying that 
 they are too serious to be bargained over and left to the sole disposal 
 of the two parties affected, and of insisting on a fine in respect of 
 these being paid to the king, or some bodily punishment separately 
 infiicted on the wrongdoer as an example or deterrent, is of later 
 origin, and arises, after long experience, when the power of drawing 
 nice distinctions and when habits of reflection have been acquired. 
 The crinn'nal law is thus a product of a civilisation considerahl}' more 
 advanced than the civil law, and is merely a selection or classification 
 of the wrongs for a separate treatment and more strictly personal 
 punishment. In the Chinese code the distinction between civil and 
 criminal law was said to be imknown, and all wmngs and causes of 
 action were treated criminally. — Staunlon^n Chin. Code, 360. It was 
 the same in the kingdom of Siam. — 3 Univ. Mod. Hist., 345, In 
 the laws of Zoroaslisr all violations of law were treated as crimes, 
 and tlicrc was nothing corresponding to civil law ; a refusal to pay 
 a debt was equivalent to larceny, and jjunishcd accordingly. — 
 jyAnqiiet. Zend Avesta.
 
 en. II.] LAW OF NATIONS. 93 
 
 least nominally, to the crown; while as regards a civil 
 injury, it is entirely an affair of money between the parties, 
 and if they choose to settle or compromise their differences, 
 no other person can interfere to prevent them. ' It is, 
 indeed, a common, though incorrect, expression that the 
 one kind of injury concerns the public and the other 
 merely concerns the individual. The correct view is that 
 both concern the public, and both concern the individual, 
 though in different degrees. The distinction is not suffi- 
 ciently broad and clear to found a separate division of the 
 law in any methodical treatise, though it is a conspicuous 
 part of practice relating to the defence of nearly all 
 rio'hts. 
 
 Distinction of commercial laio. — Sometimes the name of 
 commercial law is used to denote a division of the law 
 which, as the name imports, includes those portions of law 
 specially affecting merchants and traders. But this is 
 nothing but a fanciful and arbitrary distinction. To 
 select a few chapters of the law of contracts may be 
 convenient and useful, but cannot offer more or less than 
 a fragment of a complete subject, and that is best con- 
 sidered in its own place under the more general title of 
 " The security of contract and business," or such other 
 divisions as include what most interests those engaged 
 in commerce. Such a distinction as commercial law 
 requires no further notice here. 
 
 Distinction of tlie law of nations. — While municipal 
 law is the law which binds the citizens of one nation 
 together and governs their conduct inter se, there is a 
 branch of law, called the law of nations, which has been 
 used to denote the body of rules observed between two 
 independent nations to regulate their conduct and mutual 
 relations, when the citizens of one country come to be 
 mixed up with the business or concerns of another. And 
 at this stage some distinctions require to be made. 
 
 It is found by experience, that there are always members 
 of one nation impelled by business or pleasure to enter 
 the territory of another nation, and settle more or less per- 
 manently within its borders, and as the municipal laws of no 
 two nations are the same, some contlict or uncertainty may 
 result as to when and where the line is to be drawn, and 
 under which government these wanderers must range
 
 U ON THE LIBERTY OF THE SUBJECT. [ixtro. 
 
 themselves. By their transition from one country to 
 another the rights and duties of citizenship cannot be 
 wholly escaped, though to determine whicli is which at any 
 particular moment may often be a question of nicety, but 
 to the solution of which, nevertheless, all municipal com- 
 munities must address themselves. It is on this account 
 that one of the great divisions of municipal law already 
 noticed is called " The security of foreigners." 
 
 Relations hchoeen nation and nation in peace and war. 
 — When a nation has its own municipal laws, its own 
 fjovernment and legislature, and owes no allegiance as an 
 inferior to any other nation or government, there are two 
 S3ts of conditions under which it may be brought into 
 contact with the citizens of other nations. There may be 
 war or peace. The two nations may deal with each other 
 collectively, where the government of each is represented 
 by an ambassador, and all that passes is official and of 
 national importance. Or the citizen of one nation may 
 deal with the citizen of the other nation individually and 
 without the intervention on either side of any national or 
 official organ. 
 
 Thus as between nation and nation there are certain 
 rules more or less definite, which each observes towards the 
 other in time of war. Such are the forms of giving a 
 preliminary notice of war, and the manner of declaring it, 
 the degree of protection to enemy's property, or its confisca- 
 tion if found within the other country — the circumstances 
 Vi'hich lead to the imposing of embargoes and the issuing 
 of letters of marque and reprisal, and the encouragement 
 of privateering — the mode of dealing with the enemy's 
 property if found on the high seas, and of dealing with 
 neutrals sailing under the flag and pass of an enemy — the 
 mode of carr3ing on war, and the use of fair and lawful 
 weapons and stratagems in its prosecution — the treatment 
 of prisoners taken in war— the mode of ascertaining the 
 rights of capture of prizes at sea — of dealing with inter- 
 ference from neutral nations, and the rights and duties 
 affecting passports, truces, and treaties of peace. These 
 and numerous other details form the subjects of atten- 
 tion and cognisance on the part of governments repre- 
 senting nations, and have been reduced to a system or code 
 somcwliat resembling the nuuiicipal law of the nation
 
 CH. II.] LAW OF NATIONS. 95 
 
 itself, tliougli necessarily confined to a limited range of 
 subjects. 
 
 Then again in time of peace there are certain rules of 
 courtesy and business which require to be observed between 
 nation and nation, for no nation can now be so wholly 
 isolated from the others, that relations of some peaceable 
 kind do not spring up and assume a settled condition 
 between the citizens of both. Thus the rights and privileges 
 of ambassadors and consuls, the rights arising out of 
 commercial intercourse, out of the mutual disposition to 
 arrest and deliver over to trial and punishment fugitive 
 criminals, the riglits of passage across navigable rivers and 
 seas, or across land, require to be adjusted according to 
 certain notions of justice and courtesy, such as distinguish 
 the relations of individuals equally independent and 
 equally ready to appreciate the independence of others. 
 
 Belations between indimdiuds of dijferent nations. — But 
 though the general conditions of peace and war suggest an 
 obvious foundation for broad distinctions in regulating the 
 intercourse between nations when each is represented by its 
 own government respectively, and every act is more or less 
 official, there are many personal circumstances of a less 
 public character which vitally affect the status and 
 relations of individual subjects of one nation while living 
 temporarily or permanently within the territory of another 
 nation. These do not attain the dignity of involving con- 
 sequences yielding the alternative of peace or war, and yet 
 hundreds and thousands of individuals may be vitally 
 affected in their rights and liberties, in their persons and 
 property, according to the view which one nation or its 
 courts and legislature may take of their legal rights at a 
 particular conjuncture. Thus an individual acting under 
 the irrepressible instincts of business or pleasure may, when 
 in a foreign state, come into collision in many points with 
 the law of that state. He may have been married or divorced 
 in his own country and have children born there ; he may 
 have property in either country, or both ; he may have 
 entered into contracts and covenants binding in tlie 
 country where made, but to be performed, if at all, in 
 another country, not then contemplated by either of the 
 parties affected. He may die in the foreign country, 
 leaving property in all parts of the world. His wife or
 
 96 ON THE LIBERTY OF THE SUBJECT. [iNxno. 
 
 wives may have been divorced in one country, and he may 
 have married again in another : his children may be left 
 unprotected, his will may be formal according to the law 
 of one country, and informal according to the law of 
 another ; his rights may be complicated by every conceiv- 
 able variety of time and place. In these circumstances, as 
 the law of one or otlier country must be held to afford the 
 appropriate solution for each emergency, it is of conse- 
 quence that each nation, legislature, or court should arrive 
 at some leading principles, and these, if possible, of 
 general application, so as to avoid the uncertainty, loss, 
 or confiscation that might otherwise befall innocent 
 individuals. These rules, whatever they be, form a part of 
 international law, which has been by Foucher and others 
 termed Private International Law, The questions that 
 arise and must be solved are not of snfficient national 
 importance to attract the notice of the executive govern- 
 ment or to engage the offices of diplomacy. They are part 
 of the usual business of the world, and fall to be solved by 
 each municipal court, which for that purpose supplies from 
 its own ordinary machinery the appropriate remedy. The 
 municipal law merely suffers such variations as the 
 extended views and reasonings founded on the comity of 
 nations suggest. It thus necessarily contains, as part and 
 parcel of its own procedure, sufficient rules to govern the 
 rights of all those persons, who, by birth or otherwise, 
 could never be deemed in any view parties to the 
 mysterious original contract which binds the governed and 
 the governor. 
 
 Frivate international law. — Thus private international law 
 is in reality not at all different from the municipal law, and 
 is enforced in the same way; it forms, in effect, part of the 
 municipal law, the only difference being, that, in all ques- 
 tions that arise, one of the parties, or it may be both, were, 
 or are, citizens of another country. This circumstance is, 
 however, sufficiently frequent and important to pervade 
 nearly all the departments of substantive law in every 
 municipal code, and on that account, as it forms a varia- 
 tion running through all tlie other divisions, it is in the 
 previous systematic arrangement treated as of itself a 
 separate division of the law. This is, however, merely 
 Ijccause different principles and rules require to be applied
 
 rri. II.] LAW OF NATIONS. 97 
 
 when the peculiarity of foreign nationality pervades the 
 subject-matter. This division, as already stated, has been 
 called the security of foreigners, but it in reality nearly 
 coincides with what modern jurists have often described as 
 private international law. 
 
 PvMic international law. — The other part of the law of 
 nations, which has been called public international law, and 
 is a voluminous code in itself, differs in three most vital 
 particulars from what constitutes the municipal law of a 
 country. When one speaks of the municipal law. there 
 are necessarily implied three essential characteristics of 
 that law. 1. That there is a recoonised organ of legislation 
 to alter any part of that law, and adapt it to the varying 
 circumstances and situations which arise. 2. That there 
 is implied, secondly, a recognised court or tribunal to settle 
 authoritatively the meaning of that law and its application 
 to the circumstances of each individual case. 3. And 
 thirdly, there is implied a definite and recognised mode of 
 enforcing the decisions of such tribunal by the appropriate 
 executive machinery, involving such punishment as courts 
 can inflict. In all and each of these three vital characteristics 
 that part of the law of nations called public international 
 law is altogether deficient, so that to call it a law at all is 
 rather a figure of speech than a correct use of technical 
 language. It is a law only in the sense in which the code 
 of honour or the code of morals, or religion, or any other 
 rule of conduct is a law, being a collection of self-imposed 
 rules and maxims drawn up in imitation of municipal laws, 
 and so as to adapt the spirit and essence of that law, and of 
 the rules of morality which underlie all law, to the circum- 
 stances and conduct of two independent and irresponsible 
 powers, acknowledging no common superior, and therefore 
 not subject to any compulsory enforcement of the will of 
 each other. 
 
 It may be asked how it is that such a code of law as 
 this arises and acquires respect and voluntary obedience, so 
 that though no nation is itself bound, or can compel another 
 to give obedience to it, yet if the subject-matter is of suflicient 
 moment, one will go to war with another to enforce it. 
 
 How law of nations arises. — It has been said by Montes- 
 quieu that the law of nations is founded on the principle, 
 that different nations ought to do to each other as much 
 
 VOL. I. H
 
 98 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 <i;ood in peace and as little harm in war as possible, without 
 injury to their true interests.^ This explanation seems to 
 accept as a necessity, what was then probably deemed as 
 inevitable as a law of nature, that war must occasionally 
 occur, and that although it could not be prevented, yet its 
 accompanying evils might be mitigated. But the great 
 thinkers of the world, who constantly discover higlier 
 standards of morality, have inculcated the doctrine, that 
 nations are not necessarily natural enemies, that they do 
 not necessarily require to fight with each other over every 
 difference, that brute force and blind chance have not 
 necessarily any close connection with the merits of their 
 quarrel any more than the duels of gladiators or the ordeals 
 of the middle ages — that war, so far from being an inevitable 
 necessity, may yet in the progress of enlightenment come 
 to be treated, like piracy, as the common enemy of human 
 progress. The law of nations in truth arises just as the 
 municipal law of a country arises, from inevitable necessity, 
 for the gravitation of human experience in all ages and 
 circumstances is towards some kind of generalization of 
 the rules of justice and mutual respect, founded on the still 
 more elementary sentiment, that all nations, like men, are 
 equal, and strive to attain equality of advantages in what- 
 ever circumstances they are placed. As municipal law 
 springs gradually out of this sentiment between individuals, 
 so a sentiment arises of a like kind between nation and 
 nation. This law of nations, or public international law, is 
 however, not a part of the substantive municipal law. Its 
 sole end and object bring it within the category of admi- 
 nistrative law. A nation undertakes wars, not for any 
 benefit inherent in war itself, but as a means to an end — - 
 as a means of preserving its own municipal law intact, or 
 enhancing the benefits arising from it, whether these 
 benefits consist in expanding commerce, in enlarging the 
 area of territory, or in manifesting power and resources 
 for deterrent effects. The duty of declaring war and carry- 
 ing it on, and all the detailsof public international law with 
 regard to it, thus ibrm part of tlie business of the executive 
 government, and as such belong to that division of the 
 law already designated " the government," ^ 
 
 ^ Monteaq. L'Espril, b. i. c. 3. 
 
 ' " Thcjus gentium and. jus uaturale meant the same thing in Eoman
 
 CH. II.] LAW OF NATURE. 99 
 
 Distinction of the law of nature. — The law of nature, or 
 natural law, is a phrase which constantly occurs in the 
 writings of most jurists and of all political writers, and 
 there is, perhaps, none which is less clearly defined. Some 
 even give to it the importance of a separate division by 
 itself, and talk of the divine law, natural law, international 
 law, and positive law, as the four great divisions. In the 
 great variety of treatment which this kind of law has 
 received, it is impossible to discern any well-defined idea, 
 and it is difficult to avoid the conclusion of Bentham, that 
 its descriptive name is a metaphor and nothing more. Yet 
 it deserves some notice in any work which professes to 
 give a complete outline of any one municipal law, more 
 especially as every writer in turn has attached to it some 
 meaning of his own. 
 
 Definitions of the law of nature. — The law of nature was 
 recognised by Plato and Aristotle and Cicero as something 
 differing from the municipal law of each community.^ 
 
 Cicero says, " Law is right reason congruous to nature, 
 pervading all minds, constant, eternal, which calls to duty 
 by its commands, and repels from wrong-doing by its 
 prohibitions, and to the good does not command or forbid 
 in vain, while the evil-disposed are unmoved by its ex- 
 hortations and warnings. This law cannot be annulled, 
 superseded, or overruled. No senate, no people can loose 
 us from it : no jurist, no interpreter can explain it away. 
 It is not one law at Kome, another at Athens: one at 
 present, another at some future time ; but one law, per- 
 
 law, though the Romans, by their intercourse with other people, and 
 by comparing their own rules of law with those of foreigners, could 
 not fail to discover those universal principles which prevail in the 
 law of all nations. Tlie term jus gentium indicates the accidental 
 mode in which the notion originated, and the jus naturale indicates 
 the permanent source which it had in the primary instincts and 
 habits of human beings, who are all formed ahke." — Long's Dis- 
 course, 64. 
 
 " Before any systematic treatises were published on public inter- 
 national law, the rules rested on theological casuistry, or on the 
 analogies of positive and local law, or on the loose practice of nations 
 and precedents rather of anus than of reason. Ayala in 1582 and 
 Albericus Gentilis in 1583 and 1589 reduced the whole to order, and 
 they were soon superseded by Grotius in 1625." — 2 Hallam, Lit. 
 Hist. 179. 
 
 1 Arist. Rhet, i. 13. 
 
 n 2
 
 100 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 petual and immutable, including all nations and all times. "^ 
 Justinian's Institutes describe the law of nature as that 
 which has taught the lower animals as well as man. Mo- 
 dern writers treat the law of nature as almost synonymous 
 with moral law.^ 
 
 Law of nature has no historical basis. — Though some 
 
 1 Cic. De Rep. iii. 22, quoted Lactant. Inst. vi. 8. 
 
 2 The following are some of the definitions of the Law of Nature : — 
 BuRLAMAQUi — Those rules which nature prescribes to man with 
 
 a view to his trae and enduring happiness. 
 
 PuFFENDORF — That universal rule of human actions to which every 
 man is obhged to conform as he is a reasonable creature. 
 
 RuTHERFORTH — Those rules of moral conduct which mankind in 
 their intercourse with each other are obliged to observe, from their 
 very nature and constitution. 
 
 Montesquieu — Those laws anterior to the establishment of societ}\ 
 
 Dagge's Grim. Lmv — Those laws which every intelligent being is 
 obliged to observe under an imknown penalty for transgressing the 
 prescribed will of that Supreme Being fi'om whom he derives his 
 rational powers. 
 
 Grotius — The dictate of right reason, whereby any action is 
 morally good or bad, and as such is enjoined or prohibited by God, 
 the author and preserver of nature ; also the principles of right 
 reason, which enable us to know that a certain action is right or 
 wrong according to its congruity with the reasonable and social 
 nature of man. — De Jure, h. i. c. 1, s. 10. 
 
 Coke — The moral law written with the finger of God on the heart 
 of man. 
 
 Kent — Rules of conduct, the deductions of right reason, and also 
 declared by divine revelation. 
 
 FoRTESCUE — The truth of justice which is capable of being by 
 right reason revealed. — De Nat. b. i. ch. 31. 
 
 Milton — The law of nature is the only law of laws truly, and 
 properly, to all mankind fundamental, the beginning and end of all 
 government. — Milton, Free Com. 
 
 BoLiNGBROKE with Ciceronian eloquence follows Cicero, and says 
 the law of nature is the law of laws. — Bolinghr. Frag. Ess. ix. xvi. 
 
 The Jews had different notions of the law of nature from sur- 
 rounding nations, and did not derive it from customs of nations, 
 but from oral tradition of God's revelation. — 3 Hallam, Lit. Hist. 
 146. 
 
 The Frederician Code saj's the first state which man acquires is 
 the state of liberty, for naturally all men are free. — Fred. Code, p. i. 
 b. i. tit. 5. 
 
 Bentham says the expression, law of nature, is figurative and 
 metaphorical ; it is a metaphor taken from the use given to the same 
 word " law," in the case of political law ; it is to that source conse- 
 quently that we must resort for an explanation of it. — 7 Benth. 
 Works. 83.
 
 cu. n.] LAW OF NATURE. 101 
 
 assume, and though the popular notion seems to be, tliat 
 the law of nature is some law which precedes municipal 
 law, and which continues to form the substratum and the 
 better part of the municipal law after the secondary stage 
 has been entered upon, the ready answer is, that such a 
 theory is opposed to facts. There is not and never was 
 any other law than municipal law known and familiar to 
 any society, however rude. The two conditions, if there 
 are two, are simultaneous and correlative. Municipal law 
 is to each community the sum of all laws and all customs, 
 whencesoever derived. Yet not unfrequently one hears 
 appeals made to the law of nature, as if in some anterior 
 and barbaric state, or in some golden age,^ each nation once 
 possessed a better law than the municipal law, and as 
 if the rudiments of a purer law can be found by reverting 
 to those early times. Nothing is more fallacious than this. 
 The further back we go in the history of any of the exist- 
 ing civilised nations, the less we find of the rudiments of 
 municipal law, and the fewer of those features which form 
 the pride and glory of present times. He who reads 
 Tacitus and C?esar for the early condition of the British 
 and German races, and the various travellers who have 
 seen and described tribes still more barbaric in all parts of 
 the world, will find scarcely a trace of the leading doctrines 
 and maxims of modern municipal law.^ With such tribes 
 and races, marriage, or what corresponded to it, was neither 
 a contract, nor a religious rite, nor even a personal associa- 
 tion of any kind. Fraud and plunder were often viewed 
 as masterly displays of genius, worthy to be applauded. 
 Chastity was not only repudiated, but its absence was often 
 a positive merit, or even an indispensable duty. Public 
 worship had nothing but the semblance of some fiendish 
 and malignant murder of innocent and blameless victims, 
 to propitiate an unknown and an unappeasable demon. 
 All the finer feelings, which flow from the exercise of our 
 highest faculties, from thought, speech, benevolence, piety, 
 
 ^ Tacitus says the first race of men lived free from ciime and 
 without chastisement or restraint. — Tacit. Ann. h. iii. c. 26. 
 
 ^ Pitt said, in 1792, " We were once as ohscure among the nations 
 of the earth, as savage in our manners, as debased in our morals, 
 as degraded in our understandings, as the African race was then." 
 —29 Pari. Hist. 1157.
 
 102 ON THE LIBERTY OF THE SUBJECT. [rNTRO. 
 
 enthusiasm, and which now give the relish to life, were 
 unknown and unattainable. Man was a mere tool of 
 appetite and lust; the converse of the normal man of 
 civilisation. Nothing upon which an enlightened modern 
 nation most values itself, whether relating to the security 
 of the person, or of property, of marriage, public worship, 
 free thought and speech, fair trial, legislation, or govern- 
 ment, can be traced satisfactorily in the dark history of the 
 ages anterior as well as long posterior to the Christian 
 era. Here and there enlightened saws and maxims are 
 found in circulation, but these shine like meteors, and 
 play no well-defined part in the surrounding system of 
 society. If it were not for the Roman law of contracts, 
 which was well and skilfully matured, the modern lawyer 
 can point to no firm landmark or territory conquered from 
 the waste of centuries, on which his eye can rest com- 
 placently. If there was a law of nature or a standard 
 law antecedent to its deteriorated varieties, then no 
 nation seems to have attained to an accurate knowledge 
 of it, and Cicero's and Bolingbroke's glowing appeals seem 
 to point only to a land of shadows, and to be little else 
 than flourishes of rhetoric. 
 
 On ivhat basis the law of nature rests. — So little can a 
 definite meaning be attached to the current allusions to 
 the law of nature, that few or no rights turn upon it, and 
 it seems little more than a point for declamation. It is 
 nothing but the analysis which the municipal law of all 
 nations cannot fail to undergo in the thoughts of intel- 
 ligent citizens. It is only the shadow of the concrete 
 substance. Every person, in testing and working out the 
 municipal law, sees instinctively that its rules are all 
 essentially general in their application, are independent 
 of personal peculiarities and accidental circumstances. 
 Every one endowed with reflection knows and feels, that 
 his legal rights and wrongs do not depend on the colour 
 of his hair,^ his name, the numljer of his friends, his age, 
 his wealth, his temper, his stature, or his personal appear- 
 ance. AVhen the municipal law is stripped of all the 
 
 1 This must be qualified by the recollection that the ancient 
 Egyptians used to kill their red-haired people. — Montesq. b. xv. ch. 6. 
 And a Brahmin was forbidden to marry a red-haired girl. — 7 PF. 
 Jo)ies, 154.
 
 en. 11.] OFFENCE MALUM IN SE. 103 
 
 adventitious things which often adhere to it, the residuum 
 is the law of nature. It is the skeleton of the municipal 
 law, and the skeleton of one municipal law differs from 
 that of other municipal laws as much as, but not more 
 than, the types of face and head of one race from another. 
 There is no advantage, therefore, in dwelling further on 
 tlie law of nature, for it can never form any satisfactory 
 basis for a separate division of the municipal law, or even 
 for a standard of comparison. The standard nowhere 
 exists : it is only the echo of every one's independent 
 reflections on the actual law in force for the time being.^ 
 
 Distinction of law as malum in se and malum proMhitum. 
 — Somewhat akin to the subject of the law of nature is a 
 distinction current among jurists and writers on inter- 
 national law between a thing which is malum in se and 
 malum proJiihitmn. By this is generally indicated that 
 one thing is wrong and wicked in itself, and another thing 
 is not wrong in itself, but is wrong only because, and to 
 the extent within which, the municipal law has prohibited 
 
 ^ The law of nature has often been said by writers to be part of 
 tlie law of England.— Calvin's Case, 7 Rep. 4, 6. Even in a recent 
 case, a judge, professing to follow Blackstone, said the law of England 
 was said to be founded on the law of nature and the revealed will of 
 God.— Per Best, J., Forbes v Cochrane, 2 B. & C. 471. The lords, 
 who in 1772 protested against the Royal Marriage Act, relied much 
 on the argument, that it was against the law of nature, which they 
 said no civil law can take away. — 2 Rogers's Protests, 124. The law 
 of nature is by some called the law of reason, which perhaps seems 
 a more befitting name. — Doct. & St. i. c, 2. 
 
 FiLANGiERl said : " The law of nature is inseparable from the 
 natiire of thinking beings, that it subsisted and would subsist for 
 ever, in defiance of the passions which distract it, the tyrants and 
 impostors who would obliterate or annihilate it in blood and super- 
 stition." — Filang. Sci. d. Legist, ch. 4. 
 
 Adam Smith, one of the great original thinkers of his time, says : 
 " It might have been expected that tlie reasonings of lawyers upon 
 the different imperfections and improvements of the laws of different 
 countries should have given occasion to an inquiry into what were 
 the natural rules of justice, independent of all positive institution." — 
 A. Smith'' s Theory, p. 6, s. 4. It appears that Smith intended 
 himself to prepare such a work ; but it was unfortunately never 
 accomplished.— J., Smitli's Life. 
 
 Burke said Domat, one of the greatest French lawyers, laid it down, 
 that the doctrine of prescription of crime was part of the law of 
 nature. And this was obviously founded on the current misconcep- 
 tion, that there was a law of nature as a distinct code.
 
 104 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 it. Thus, murder and larceny would be deemed mala in 
 se, because they are said to be prohibited by the moral law, 
 or the law of nature, in all countries and times ;^ while 
 other things, such as killing game without paying for a 
 licence, issuing a bill of exchange without a stamp, im- 
 porting goods without paying duty, building a house 
 beyond the line of street without a licence, are mala 
 prohibita, because, though one country enforces them, many 
 countries do not. The distinction is further explained by 
 saying that an offence which is malum in se is intrinsically 
 immoral and illegal, while malum prohibitum is not so, for 
 that there is given an alternative to each person in the , 
 latter class of laws, allowing him at discretion to do the 
 prohibited thing, if he is willing to pay the penalty, or 
 accept the punishment as its equivalent. The view is 
 said to be, that the violator of the law is discharged, when 
 he chooses either of the alternatives, and owes no duty to 
 the state beyond accepting one of them. And this last 
 was the view of Blackstone. 
 
 If this distinction is well founded. — But to draw such a 
 distinction is not only immoral in itself, but is a mis- 
 apprehension of the whole scope of the law. The municipal 
 law does not adopt and enforce the moral law or the 
 divine law merely because it is divine, but because the 
 general security and the object of civil government cannot 
 be attained without so enforcing it, or a part of it. The 
 very same is the reason of mala prohibita; the only 
 difTerence lies in the degree of importance of each specific 
 law. The violation of one law is deemed of less conse- 
 quence than the violation of another. The moral turpitude 
 is very different, and all communities in all stages of 
 civilisation must recognise degrees of importance and 
 merit in the obedience to the laws. But in each and every 
 instance of an offence whether malmn in se or malum pro- 
 hibitum, there is and can be no option given or intended to 
 
 1 Vaughan, C. J., who discussed tliis subject in reference to the 
 dispensing power of the king, says : " Murder, adultery, stealing, 
 incest, sacrilege, extortion, perjury, trespass, and many other of the 
 like kind, all men will agree to be niala in se." And he says, "those 
 things are mala in se which can never be made lawful even by 
 statute." — Vawjh. Rep. 330. But there is no more definite line 
 drawn.
 
 CH. II.] OFFENCE MALUM PROHIBITUM. 105 
 
 be given to any individual to make his election between 
 violation of law, or paying the penalty assigned to such vio- 
 lation. In all cases the law intends and desires that there 
 should be no violation of any kind, liowever unimportant, 
 and the sole reason wliy the same penalty, the same amends, 
 the same remedy or punishment, is not apportioned to each 
 is, that the punishment is deemed in each case just a suffi- 
 cient check or counterpoise, and no more, against such 
 violation. The distinction is not one of principle, but only 
 one of degree, for civil wrongs and criminal offences are 
 subject alike to this treatment. To found any distinction 
 upon an option being given in the one case and not in the 
 other, is obviously untenable, is fraught with mischief, and 
 saps the foundation of morality itself. A sound morality 
 revolts altogether against the conduct of the man who 
 walked through the streets of ancient Eome boxing on the 
 ears everybody he met, and then ordering his servant, who 
 followed with a bag of money, to recompence each victim 
 of his wanton insolence with twenty-five pence, according 
 to the tariff of the Twelve Tables.^ Such conduct was in 
 the eye of the law immoral, even if it were competent, as 
 certainly in our law it is not competent, for any offender to 
 be able to appraise the exact sum required to atone for his 
 delinquency, Epicurus saw this distinction clearly, for 
 his saying was, that from the moment a thing, declared 
 just by the law, was recognised as useful for the mutual 
 relations of men, it became really just, whether it was 
 universally regarded as just or not.^ 
 
 It is true there are a few laws so framed as to present 
 an option to the individual to do one of two or three 
 things ; either of which the law accepts as an equivalent of 
 the others ; but this is because the option is part of the 
 essence and substance of the particular law, and is ex- 
 pressly or impliedly so declared by its very language. 
 Thus, by the Militia Act of Charles II. a man charged to 
 serve as a horse or foot soldier might discharge his obligation 
 by finding a substitute.^ And a similar option is also given 
 by the modern militia law. But though a violation of the 
 moral law may be no violation of the municipal law, 
 a violation of the municipal law can never fail to be a 
 
 1 Aul. Gell. b. 20, c. 1. « Diog. Laert. Epic. 
 
 ^ 14 Ch. II. c. 3, § U.
 
 106 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 violation of the moral law, so long as the lesson is incul- 
 cated to all Christians to render unto Csesar the things that 
 are Caesar's ; and all those who are satisfied with the theory 
 of divine right cannot escape from the conclusion, that 
 little sins are not the less sinful for their littleness. 
 
 The distinction of malum in se is usually said, or as- 
 sumed, to be founded on the law of nature or morality, 
 which in all countries marks out offences into classes as 
 clearly as the eternal distinction between right and wrong. 
 But it must be remembered that the test of right and wrong, 
 eternal though it be, is not the same in different countries, 
 and wholly fails in the stages of barbarism. Among tribes, 
 and even among nations, at least those that are ancient, 
 there is scarcely a point in the Decalogue which does not 
 find its converse acknowledged as orthodox. It is probable 
 that larceny was the earliest offence defined in any society ; 
 murder is of later origin ; and when adultery and witch- 
 craft are added, it is difficult to identify other crimes 
 as essential crimes, and of these witchcraft is wholly erased 
 from modern codes. 
 
 Nor does the distinction of malum in se and malum 
 prohihitiwi derive the least support from the practice of 
 martyrs and nonconformists, whose conscience has been so 
 shocked by a particular law that they have openly encoun- 
 tered all the risks of wilfully disobeying it. Marcus 
 Antoninus says approvingly, that when Socrates was 
 ordered to apprehend the innocent Salominian, he gallantly 
 disobeyed at all hazards the unjust command ;^ and this con- 
 duct was worthy of one whom the Fathers called a Chris- 
 tian before Christ. History in its noblest passages recounts 
 instances of martyrs braving cruel deaths, and resisting, if 
 not defying, the whole power of the civil government in all 
 its stages and in all its consequences, rather than yield it 
 their obedience, and such a supreme moment has happened 
 more frequently than it is ever likely to happen again. 
 These martyrs did not confront death merely because some 
 obnoxious law turned on 'malum in se or malum prohibitum. 
 They did so because, taught by a higher and diviner law, 
 they were satisfied that the municipal law had blundered 
 in maintaining some bloodthirsty, impious, and tyrannical 
 punishments, which created an open conflict between self- 
 ^ M. Aiitun., b. vii, ch. 60. Plato Apol.
 
 CH. II.] 'THE DIVINE LAW. 107 
 
 interest and duty, and exposed its subjects to some cruel 
 alternative. And though it was not to be expected their 
 contemporaries in the social contract should openly excuse 
 them, yet the more enlightened and impartial conscience 
 of posterity has done justice to their sagacity and high 
 standard of right by canonising their bones. Though 
 martyrs themselves may at times err, they have also fre- 
 quently been in the right. All legislatures have erred once 
 and again in binding burdens too heavy to bear ; for mistakes 
 are incidental to legislatures as well as to individuals.^ 
 
 So long as the distinction of malum in se is used in 
 international law, as denoting some of the blackest crimes 
 which are marked out for universal detestation in the family 
 of civilised nations, such distinction may be convenient, 
 but it is not founded in any clear principle sufficient to 
 challenge any importance in a systematic treatment of the 
 municipal law.^ 
 
 Distinction of the divine law. — The law of God is some- 
 times also appealed to by jurists and writers as a part of 
 the substantive municipal law, or at least a source of part 
 
 1 Fox said " in this country we were governed by king, lords, and 
 commons, but no man wouJd contend that any of those powers was 
 infaUible."— 29 Pari. Hist. 1374. 
 
 " The distinction of malum in se and malum prohihitum was said 
 by Bentham to be at best obscure. — 1 Benth. Works, 193 ; and by 
 Austin, one that leads to nothing. — 2 Aust. Jur., 264. 
 
 The distinction was used in colonial law, where things mala in se 
 accepted in the law of the colony were deemed blotted out, as against 
 the law of the conquering country. But the distinction only resolves 
 itself into the question whether one law is repugnant to the other : 
 in short, the word malum in se is used only vaguely as denoting that 
 the offence is morally bad. — BJanckard v Galdy, 2 Salk. 411 ; Anon, 
 2 P. Wms. 75 ; E. v Picton, 30 St. Tr. 906, 907 ; II v Macclesfield, IG 
 St. Tr. 1146. 
 
 Lord Thurlow said the distinction of an act not being malum in 
 se could not be listened to, if the law has prohibited the thing to be 
 done. — Hanington v Du Chastel, 2 Swanst. 159 n. 
 
 " I do not know of any crime being punished because of its being 
 malum in se." — Per L. EUenhorough, 28 St. Tr. 401. 
 
 Foster used the word malum in se loosely to distinguish revenue 
 offences froni other offences, in cases of striking in anger or from 
 malice. — Foster's Disc. ii. ch. 1. 
 
 Abbott, C. J., said the court was bound to consider every act to 
 be unlawful, which the law has prohibited to be done. — Caunan v 
 Bryce, 3 B. & Aid. 179.
 
 108 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 of that law. Some old writers seem to treat it as the main 
 source, and eminent judges, even of modern times, have en- 
 couraged that mode of speech. The connection between 
 the municipal law of all countries and the divine law is 
 marked by some peculiar features not easily explained, and 
 the subject is interesting to all who choose to reflect. 
 
 Ancient codes professing a divine origin. — Milton expressed 
 no new idea when he said, that all the ancient lawgivers 
 were either truly inspired, as Moses, or were such men as, 
 with authority enough, might give it out to be so, as Minos, 
 Lycurgus, ISTuma, because they wisely forethought that men 
 would never quietly submit to such a discipline as had not 
 more of God's hand in it than man's.^ And at a later day it 
 was said,^ to the same effect, that most of the ancient law- 
 givers and institutors of civil policy, having found it neces- 
 sary for the carrying on their respective establishments to 
 pretend to inspiration and the extraordinary assistance of 
 some god, unavoidably mingled and confounded civil and 
 religious interests with one another, so as to animadvert on 
 actions not only as crimes against the state, but as sins 
 against that god who patronised the foundation.^ And 
 Homer says the things that kings receive from Jove are not 
 engines for taking towns, or ships with brazen beaks, but 
 law and justice ; these they are to keep.* 
 
 1 Milton, Reas. Ch. Gov. *> 4 Warburton, W. 43. 
 
 » Bishop Warburton collects {Divine Legation of Moses, b. ii. s. 2) 
 references to the ancients and to the Chinese, Peruvian, Gothic, and 
 Mohammedan codes. DiODORUS Siculus said the old legislators did 
 this, " not only to beget a veneration of their laws, but likewise to 
 establish the opinion of the superintendency of the gods over Roman 
 aflEairs." — Diod. Sic. h. i. Plato also says at the outset of his treatise 
 on laws, " that legislation came from the gods." — De Leg. b. i. s. 1 ; 
 and that it was so in Athens, Crete, and Lacedismon. Herodotus 
 says Lycurgus got his laws direct from the Pythian oracle. — Herod. 
 b. 1. And Plutarch says he got them from Apollo, while Minos 
 got his from Jupiter. — Flut. Lycurg. Not only the laws, but even 
 the Court of Areopagus was deemed by the Athenians to be of 
 divine origin, or, at all events, so ancient that its origin was un- 
 known.—"! ThirlwalVs Greece, 345; Plut. Pericl. The ancient 
 Egyptians also thought the gods dictated their laws. — 2 Wilk. Anc. 
 Egyp. ch. 8. The laws of Upland, a Swedish code of 1295, purported 
 to have a divine sanction. — G Pink. Voy. 621. 
 
 ■' Horn. II. b. i, 231. " The jjrimitive Christians derived the institu- 
 tions of civil government, not from the consent of the people, but 
 from the decrees of Heaven. Every usurper, when holding the
 
 .:h. II.] DIVINE ORIGIN OF LAW. 109 
 
 The prevalence of the belief in the divine origin of their 
 municipal laws either accounts for or is closely connected 
 with the extraordinary reluctance of some nations to change 
 their laws, which is only another phase of a belief in their 
 superiority.^ 
 
 And to the same tendency of the human mind may be 
 ascribed the belief in barbarous tribes as to their original 
 right to their own soil.^ 
 
 Bceptre, was deemed a vicegerent of the Deity." — Gibbon, Rom. Emp. 
 ch. XX. The Incas always gave out, that 'any new law they issued 
 had been originally sketched out, though not put in a detailed form, 
 by the first of the Incas, in order to give greater authority to what 
 they enjoined. — Com. of Incas, b. ii. ch. ix. And they attributed 
 their immunity from crime chiefly to the belief that the laws were 
 made by the sun, and therefore divine. — lb. b. ii. ch. xiii. 
 
 ^ So great was the aversion of the Lociians to any new law, that 
 the man who ventured to propose one appeared in pubhc with a 
 rope round his neck, which was at once tightened if he failed to con- 
 vince the assembly of his improvement. — Demosth. cont. Tiinoc, 
 p. 744 ; Polyh. xii. 10. And the same was said of the Thurians and 
 the laws of Zaleucus and Charondas. — Diod. Sic. Solon was more 
 liberal, but the Athenians themselves punished those who proposed 
 a new law inconsistent with existing laws, forgetting that it was the 
 very object of a new law to be so far inconsistent. — " Paronouion," 
 Smith's Diet. The peasants of Livonia were so infatuated in favour 
 of their old laws that they besought the king of Poland not to sub- 
 stitute a milder punishment for the old one, which was whipping till 
 tlie blood flowed. — 13 Univ. Mod. Hist. 125. 
 
 The laws of the Medes and Persians had the reputation among the 
 ancients of " altering not." — Dan. vi. 12. 
 
 In Japan it was said any functionary, however exalted, who 
 attempted an innovation, was rejsorted to headquarters and capitally 
 executed. And in the supreme council he, who proposed an altera- 
 tion which was rejected, was requested to disembowel himself as a 
 matter of course.— Perr?/'s Japan. E.eped. i. 16, 17. 
 
 In China, where the laws were unchangeable, it was recorded as 
 a fearful and wonderful example of innovation, that the Emperor 
 Venti had once abolished the rule, which required that in punishing 
 a criminal his whole family and relatives must be involved in one 
 and the same common ruin with him. — Du Halde's China. 
 
 ' In all the countries boasting of the earliest civilisation the 
 behef of the nation attributed to itself the immemorial possession 
 of its own soil, and to its progenitors or to the gods the invention 
 of the arts and sciences. Egypt seems in antiquity of civilisation 
 to have surpassed India and China, Babylon and Assyria. — Lepsius, 
 Chron. der Egypt. Oen. xiv. 1. From Egypt civilisatiun passed to 
 Greece, thence to Rome, and thence to the western nations. The 
 Athenians wore grasshoppers in their hair, in testimony of this
 
 110 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 There are traces of a kindred spirit in the law of 
 England. Fortescue, in discoursing on the origin of our 
 customs, says the'y are the most venerable in the world 
 for their antiquity, and therefore they are good.^ And 
 Popham, C. J., gravely propounded the view that the laws 
 of England had continued unchanged through all the vicis- 
 situdes of Roman, Danish, Saxon, and Norman sway. 
 And Coke surpasses these speculations in his extravagance.^ 
 Later and more critical eyes have come to other con- 
 clusions. The English common law was chiefly based on 
 the Roman law, and Bracton scarcely introduces a new 
 principle not found there.^ The compiler of the laws of 
 Henry I. evidently had before him a copy of the Theodosian 
 Code, or the Breviarium.^ The Summary of Roman Law, 
 by Vacarius, who was Professor of Civil Law at Oxford in 
 1149, became well knov/n to the English judges and 
 lawyers of the time.^ And Edward I., on his way to the 
 Holy Land, attended and admired Accursius, whom he 
 invited to England.^ 
 
 Though all the facts of history contradict the theory, that 
 every chapter and verse of a law giving remedies for all the 
 wrongs that can happen, must have been elaborated by 
 
 notion. Many ancient nations had a tradition of some foreigner 
 or messenger from heaven having instructed them — Prometheus, 
 Triptolemus, Cadmus. The Peruvians had a similar tradition about 
 one Mancocaijac. Each tribe of American Indians is said to beheve 
 itself superior to all others in virtue and humanity. The Indians of 
 Florida believe that the great Spirit brought them from the ground, 
 and that they are its rightful possessors. — 1 Schooler. Ind. 266 ; 
 2 lUd. 170, 194. 
 
 1 Fortesc. De Laud. c. 17. 
 
 a " And here it is worthy of consideration how the laws of England 
 are not derived from any foreign law, either canon, civil, or other, 
 but a special law ai)propriated to this kingdom, and most accom- 
 modate and apt for the good government thereof, under which it 
 hath wonderfully flourished when this law hath been put in due 
 execution ; and therefore, as by situation, so by law, it is truly said, 
 — et penitus toto dwisos orhe liritannos." — 2d Inst. lUO. And Lord 
 Chancellor Cowper, at a more advanced stage, when he pronounced 
 sentence on Lord Derwentwatcr, told the latter that he had " at- 
 tempted to raze the very foundaticms of a government the best 
 suited in the world to perfect the happiness and support the dignity 
 of human nature." — R. v Derwentwatcr, 15 St. Tr. 7'J7. 
 
 => 1 Spence, Eq. Jur. 132. * Savigny, torn. i. 102. 
 
 « 1 Spcncc, E(i. Jur. 1U9. « Post, p. 127.
 
 CH. II.] CHRISTIANITY PART OF THE LAW. Ill 
 
 some far-seeing and masterly legislature at a period hid 
 in prehistoric ages, yet there is no more common assump- 
 tion than this put forward. The Barons of Eunnymede 
 pointed to tlie time before them in order to give emphasis 
 to their demands. Pym and his compeers resolutely con- 
 tended that all they asked — that each and every article of 
 the Petition of Eight — had been included, or at least 
 implied, in older precedents and in Magna Charta. Old 
 statutes also bear reference to this perpetual harking back 
 to some golden age of laws forgotten or disregarded. 
 And yet much of the legislation of the last two centuries 
 has consisted of efforts to undo what had been done 
 before, and to retreat from much untenable ground taken 
 up in error by former legislators.^ 
 
 All these phases of the same fundamental idea tend to 
 show that human nature is so constituted, that one's own 
 lineage, tribe, country, and laws, for some unknown reason, 
 are more warmly appreciated than those of strangers, and 
 that law is often nothing else but a manifestation of 
 wisdom for the time being. It seems to come to this, that 
 wisdom is always divine, by whomsoever spoken, whence- 
 soever derived, and by whomsoever demonstrated. It is 
 known and recognised, when it appears, in all times and 
 situations, and by the most depraved beings, just as at the 
 coming of the Gospel, it was said, sorcerers, acting under 
 some unconscious presentiment, burnt their books.^ 
 
 Hoio far Christianity is part of municipal laiv. — In 
 connection with the same subject there has long been 
 current in the law of England a doctrine, or dictum, that 
 Christianity is part of the municipal law. The old judges 
 vied with each other in wide and sweeping language on 
 this subject.^ Coke said that all laws which are contrary 
 
 1 Mackintosh observes that both Whig and Tory antiquaries in 
 the seventeenth century agreed in the mistaken notion, that the 
 Saxon government was well ordered, and that through all the 
 changes of tlie previous six hundred years tlie same political and 
 legal institutions had existed. They forgot that a government is 
 not framed like a model, but grows out of occasional acts. — 1 Mack. 
 Hist. Eng. T2. - Acts xix. v. 19. 
 
 ^ " Scripture is common law, on which all manner of laws are 
 founded."— Prisnt, C. J., 24 Hen. VI. Year-Bk. 40. Per Jermm, J. 
 (4 St. Tr. 1289—" The law of England is the law of God ; it is 
 pure primitive reason, uncorrupted and unpolluted by human
 
 112 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 to Christianity cease.^ And he said torture was contrary 
 to the laws of God; and that the law of weights and 
 measures was grounded on the law of God.^ Hale, C. J., 
 said, on a trial for blasphemous libel, " To say that religion 
 is a cheat is to destroy the frame of society, and the 
 Christian religion being a part of the constitution, to say 
 that it is an imposture, is to speak against the laws of the 
 land."^ Lord Kaymond, at a later date, repeated the 
 doctrine, but taking care to add a proviso, that the law 
 should not extend to the disputes between learned men on 
 controverted points of religion.* Lord Hardwicke recog- 
 nised a like doctrine.^ Lord Mansfield said the essential 
 principles of revealed religion are part of the common law." 
 Lord Keuyon again followed the same view, and said the 
 Christian religion is part of the law of the land.'^ Lord 
 Ellenborough, referring to these remarks, said that they 
 showed, that the Christian religion was the law of the land 
 and must be protected as the law.^ And Blackstone said 
 the same.^ And Lord Eldon said the same when dealing 
 with the right of Dissenters as to a charity.^*^ The same 
 judge said the court would not protect copyright in a 
 book which contradicted the Scriptures. ^^ These views led 
 Lord Eldon to refuse to recognise copyright in Bj'ron's 
 " Cain," and " Don Juan," also in " Wat Tyler,"!^ and to 
 disclose views as to the relations between courts of law 
 and the press not since acquiesced in. 
 
 Though it is thus said on high authority, that Christianity, 
 or the law of God, is part of the law of England, it is 
 obvious, that all that is meant is something very different 
 
 humours or human corruptions, wits, or wills." Per Keble (4 St. 
 Tr. 1307) " The law of God is the law of England ; so is the law 
 of reason." — Ih. 5 St. Tr. 172. "Whatsoever is not consonant to 
 the law of God in Scripture is not the law of England. The 
 laws of England are purely the laws of God. — Ih. 5 St. Tr. 238. 
 " We have no law practised in this land, but is the law of God." — 
 Ibid. 
 
 1 Calvin's Case, 7 Rep. 17. 2 2 Inst. 41. 3 Taylor's Case. 1 Ventr. 
 293 ; 3 Keb. 607. «■ R. v Woolston, 2 Str. 832. « De Costa v De 
 Vaz, 2 Swanst. 490. « 2 Camp. C. JJs. 613 ; 16 Pari. Hist. 319. 
 7 Williams's Case, 26 St. Tr. 704 ; Woolston's Case, 2 Str. 834. « R. 
 V Eaton, 31 St. Tr. 950. » 4 Bl. Com. 59. i« Bedford Charity, 
 2 Swanst. 527; Att. Gen. v Pearson, 3 Mer. 399. " Laurence v 
 Smith, 1 Jac. 474. ^* Southey v Sherwood, 2 Mer. 435 ; Murray v 
 Benbow, 1 Jac. 474 n ; 7 Campb. Ch. 659.
 
 OH. 11.] THE DIVINE LAW. 113 
 
 from what the words imply. Christianity is a system of 
 doctrines, mainly deduced from the Holy Scriptures, in- 
 tended to intiuence the conduct of man in all ages and 
 conditions, but in a manner altogether different from that 
 which the municipal law adopts. Christianity does not 
 profess to contain any compulsory methods, or to act with 
 the aid of temporal sanctions. It relies on the future, 
 the distant, and the unseen, rather than the present and 
 the visible. It searches the motives and the feelings, 
 while the municipal law deals almo.st exclusively with 
 outward acts. But the essential differential quality is this, 
 that the municipal law can and does enforce its rules by 
 sanctions more or less cogent, such sanctions beginning 
 and ending with the present life,^ while Christianity has 
 no temporal sanctions, and relies on moral and spiritual 
 restraints alone to promote its aims. The domain of the 
 one is far-reaching and infinite : that of the other is limited 
 and temporary. The one fills the mind with thoughts, 
 feelings, and contemplations which intiuence the conduct in 
 a more durable and effective manner. The other, dealing 
 only with the present, cares little or nothhig for the mental 
 state, provided the sanction takes effect — a sanction which 
 only inflicts pain, or deprives the individual of lifCj 
 property, or liberty. The things also which the one law 
 cares for are petty in comparison with the vast range of 
 the other. As far as the heaven is above the earth, so far 
 is the divine law above the municipal law, or, to quote 
 Fortescue, " as the moon is to the sun, so are human laws 
 to the divine."^ The aims and objects of municipal law 
 are ephemeral and weak, and often satisfied with mere 
 forms. Life, property, reputation, a fair trial, free speech, 
 a share in self-government, are objects \vell worthy of 
 beinc contended for, and the radical idea of the law, 
 namely, impartiality towards all alike, lends a dignity and 
 elevation to its practice. But there are objects greater 
 than these, which can be promoted without the coarse 
 
 * The ancient laws of Zoroaster seemed to stand out beyond all 
 other laws in bokllj' pressing its sanctions beyo'id tlie present life. 
 The person who broke a contract or told a Jie was sentenced to 
 300 lashes, and the same number of years in hell. And for non- 
 payment of school fees 900 years in hell were added to 900 lashes. 
 —D'Aiiq. Zend. Av. 286. - Fortesc. De Nat. b. i. c 3. 
 
 VOL. I. I
 
 114 OX THE LIBERTY OF THE SUBJECT. [intro, 
 
 dissuasives of bodily pain, or compulsory deprivation of 
 property, namely, by reliance only on rewards and gratifi- 
 cations which have no immediate or tangible existence, 
 and feelings which are invisible and incommunicable, yet 
 which irradiate all surrounding conditions and circum- 
 stances of life. While the municipal law makes selfishness 
 a science, the divine law, passing from that engrossing 
 pursuit, leads to a higher level, where most of the processes 
 are reversed, the machinery is changed, and a conscious- 
 ness of dignity and grandeur is acquired which no human 
 law can awaken or command. 
 
 Divine lav: not enforced as riiimicipal laic. — When it is 
 said, therefore, that the divine law or Christianity is 
 part of the law of England, this is wandering from the 
 true view. The municipal law does not and cannot, and it 
 would be impious for it to attempt to, enforce most parts of 
 the divine law, and it can only punish in an imperfect 
 manner tlie violation of a small part of it. Out of the 
 Tea Commandments, which deal with the leading tendencies 
 and proclivities of human nature,^ not one of them can be 
 enforced by the municipal law, except in the feeble manner 
 of punishing the delinquent after the wickedness lias been 
 committed ; and even to that slight extent, the sixth and 
 eighth commandments, those aimed against murder and 
 larceny, may be said to be the only commandments which 
 are followed up closely.^ All the divine commandments 
 
 ^ The Siamese, the Buddhists, the Talapoys of Laos, the Banyans 
 and Parsees, and Triptoleuuis had some golden rules resembling the 
 Ten Commandments. 
 
 Jewish writers record that certain short precepts of moral duty, 
 known as the precepts of the sons of Noah were really enjoined by 
 God on the parent of mankind, whether preserved by tradition, or 
 by an innate moral factdty, constantly discerned by mankind. These 
 were prohibitions a^^ainst idolatry, blasphemy, murder, adultery, 
 theft, rebellion, and cutting a limb from a living animal. — 3 Uallam^ 
 Lit. Hist. 146. 
 
 " Warbuuton says society, i.e. the law, cannot enforce above one- 
 third part of moral duties, and even that third imperfectly. It can 
 punish, but cannot reward. — 4 Warburton, Works, 33. 
 
 Plutarch said goodness moves in a larger sphere than justice : 
 the obligations of law and justice reach only to mankind, but kind- 
 ness and beneficence should be extended to creatures of every 
 species. — Plut. Cato Cens. 
 
 Aeistotle said that philosophy enabled him to do, without being
 
 cit. 11.] THE DIVINE LAW. 115 
 
 have a wide and far-reaching effect on the soul and on the 
 secret thoughts, but the municipal law only singles out a 
 few of the most glaring and conspicuous accompaniments 
 of a depraved heart. It cares nothing for murdering the 
 mind and its finer feelings by lies and refined cruelties of 
 speech and writing, but only for murdering the body, for, 
 as Hale says, " Secret things belong to God." Nothing for 
 stealing many of the appliances and cherished mental 
 possessions of another, but only for stealing a few chattels 
 and visible signs of property. The other divine command- 
 ments shrink into the very smallest dimensions in the 
 hands of the municipal law. The injunction to worship 
 one God, the prohibition of the worship of graven images, 
 and of taking the name of God in vain, the injunction to 
 keep the Sabbath-day, to honour one's parents, the jDro- 
 hibition of adultery and perjury and covetousness are 
 feebly reflected in the municipal law. Tliose who recall 
 to mind the place assigned in the latter law to the jjunish- 
 ment of blasphemy and profanity, the enactments against 
 working and amusements on the Lord's Day, the poor 
 law statutes as to neglecting to support indigent parents, 
 the partial remedies given in some cases of adultery and 
 perjury, the total blank as to covetousness, will appreciate at 
 a glance how little the divine law can be said to be incorpo- 
 rated in the nmnicipal law of England. The municipal 
 law has no faculties to comprehend the heights and depths 
 of the divine law. The Sermon on the Mount meets with a 
 feeble response or recognition throughout the whole length 
 and breadth of the statutory and common law. When the 
 exigencies of argument and the necessity of devising some 
 means of reckoning loss or damage requn-es the law to 
 form an ideal for comparison, the highest legal speculation 
 cannot soar above the standard of a reasonably prudent 
 but mostly selfish man, that is to say, a man not indeed 
 inclined to give vent to ungovernable passion, and not un- 
 willing to hear both sides, but nevertheless a man alwavs 
 acting from some prudential consideration — not apt to 
 
 commanded, wliat others did from fear of the laws. — Diog. Laert. 
 Arisf. 
 
 The code of Kina: Alfred begins with a translation of the Ten 
 Conanandments, whicli he uses as tlie kej^note fur his o\\ n edicts us 
 to the lex talionis, &c. — Aju: I.aicti Eikj. 
 
 I 2
 
 116 ON THE LIBERTY OF THE SUBJECT. [intiio. 
 
 make gifts — careful of his money — in no case given to 
 take more care of others tliau of himself — ^jealous of his 
 wife's or chikl's honour, and entitled to kill an adulterer if 
 detected in the act — one bound to carry out his contract, 
 whether wise or unwise, hut in many cases only if it be 
 made in writing — one who pays for an indigent parent or 
 child just enough to sustain life — one not bound to feed 
 the hungry or clothe the naked, except only where the 
 destitute is a child of which he has undertaken the custody — 
 one not bound to observe any forms of civility whatever — 
 one entitled to amass as much property as he can, and often 
 to slay any man in the act of robbing him of it — one 
 repudiating all feelings of gratitude^ — •one not bound to do 
 any generous or friendly act, or to risk his life to save 
 another — one entitled to drown his neighbour to save his 
 own life — one entitled to use any species of exaggeration 
 or subterfuge, or meanness, in order to drive a bargain — 
 one entitled in all circumstances, and with little discri- 
 mination, to kill another in self-defence — one not restrained 
 in the indulgence of the most odious passions, and vices, 
 envy, malevolence, ingratitude, evil-speaking, lust, and 
 insolence. These and such like infirmities, clinging to the 
 normal man, the law is powerless to restrain, and generally 
 exempts from blame. And though for some collateral 
 inquiries a higher standard is sometimes remembered as 
 being possible, yet such standard seems rather to be viewed 
 as erratic. 
 
 Blasphemy as j;or^ of municipal law. — These considera- 
 tions show how far from correct the saying is, that the 
 divine law is part of the .law of England. The two laws 
 are essentially diverse ; they move in different orbits, and 
 address different sides of the same human nature. The 
 only occasions on which the doctrine prevails is, when 
 cases arise in which a test is required for measuring the 
 
 ^ The ancient Persians pnniahcd criminally the vice of ingratitude, 
 which seemed to consist in not returning favour for favour. — Xen. 
 Mem. b. ii. ; Xeno]>h. Cyrop. And a Roman freedman was punisli- 
 able snmmaril}' for ingratitude to liis patron. — Fetit. fol. 51, tit. 8 ; 
 WoofFs Jmtit. 
 
 Anaciiausis, the intelligent foreigner of his day, laughed at 
 Solon for attempting to restrain avarice and injustice by laws, for, 
 like spiders' webs, they would only entangle the poor and weak, and 
 let the rich i.nd -powerful escape. — Plut. Solon.
 
 CH. II.] THE DIVINE LAW, 117 
 
 liberty of free speecli or writing, or of bequeathing property- 
 If any man assails and ridicules some leading doctrines of 
 the divine law, specified in a statute of William III., in such a 
 style as to show that he is not arguing or reasoning honestly, 
 but intends to insult and revile the common faith of the 
 majority of his fellow-subjects, he commits a criminal offence 
 by virtue of such statute.^ The statute is somewhat vague as 
 to the persons aimed at, yet makes it incumbent to inquire 
 what are the doctrines of the divine law which are thus 
 identified with the religious convictions of the community. 
 It is a cherished sentiment of natural piety, that some 
 thoughts and feelings are too deep for profane and insolent 
 levity, and as private character is protected against the 
 libeller, so it appears to follow that the sacred character of 
 Divine Persons is, so to speak, protected against the blas- 
 phemer. Yet all this is not inconsistent with the primary 
 right of all men to utter or publisli fair argument and 
 discussion, if done reverently and with measured respect 
 to the feelings of others. And thus it is, that, notwith- 
 standing the statute above mentioned, Christianity cannot 
 be viewed as part of the municipal law any more than 
 all other branches of knowledge or sciences are part of 
 it, when these require examination for some collateral 
 purpose bearing on the liberties and securities of property 
 and of free speech and thought. The unqualified asser- 
 tion that Christianity is part of the law of England in 
 the natural sense of that expression, tends only to suggest 
 how narrow is the province of the municipal law. In 
 cases of libel, copyright, or bequest, the courts at most 
 require to consider this subject for collateral purposes. 
 And in cases of violent and scurrilous extravagance in 
 discussing the great truths of religion, the court must draw 
 the line where blasphemy begins and fair argument and dis- 
 cussion end.^ But it may be safely affirmed that nothing in 
 this law substantially interferes with a reverent and careful 
 discussion and expression of opinion on any subject human 
 or divine, so long as it is not done merely to insult 
 and shock the laudable feelincrs of others.^ And collateral 
 
 o 
 
 1 9 & 10 W. Ill c. 35 ; 53 Geo. III. c. 160. 
 
 2 R. u Waddington, 1 B. & Cr. 27 ; R. u Carlile, 3 B. & A](l. 
 IGl. 
 
 Erskine, in his prosecution o£ Williams, most powerfully puts
 
 118 ON THE LIBEETY OF THE SUBJECT. [intro. 
 
 contracts involving the violation of tlie statute of blas- 
 j^beniy will often for like reasons not be enforced.^ 
 
 The feudal Imu. — The feudal law was not the distinctive 
 law of any nation, but was rather the law of real property 
 accepted by nearly all European nations from the fifth to 
 the thirteenth centuries. It embodied the settled views 
 and opinions of those times as to the relations between the 
 crown and the subject with respect to the tenure of land, 
 for land was then the most conspicuous suliject of property, 
 and war being tlie chief occupation, or that which was held 
 of most consequence among men, the two things were 
 sought to be used in aid of each otlier. A compact system 
 of doctrines and practices was then framed, or had grown 
 up into maturity, and gave apparently great satisfaction, 
 owing to its being easily applied and understood. Nothing 
 pleases the barbarian mind so much as what is simple, and 
 does not require the trouble of thinking much or long ; 
 and nearly all nations of northern origin accepted the feudal 
 law as a book of their constitution. For five centuries it 
 grew and prospered, and Guizot said that for the tenth 
 century it was necessary, and the only practicable social 
 state of thought.- Blackstone conjectures that it was 
 owing to the defencelessness experienced in England, when 
 an invasion from Denmark was apprehended in 1085, that 
 William I. held a great council at Sarum to inquire into 
 
 the matter thus, though his language is somewhat beyond the needs 
 of the law : " In a country whose government and constitution rest 
 for their very foundations vipon the truths of the Cliristian religion, 
 a bold, impious, blasphemous, and public renunciation of them must 
 be a high crime and misdemeanor. Of all human beings the poor, 
 among whom such books circulate, stand most in need of the conso- 
 lations of religion, and the country has the deepest stake in their 
 enjoj'ing it. not only from the protection which it owes tliem, bMt 
 because no man can be expected to be faithf id to the authority of 
 man who revolts against the government of God." — 26 St. Tr. 703. 
 
 AsnuHS'i', J., can scarcely l)e said to express the modern law : 
 " Such libels are not only oifences to God, but crimes against the 
 laws of the land, and are punisliable as such, inasnuich as they tend 
 to destroy tiiose obligations whereby civil society is bound togotlier, 
 and it is upon this ground tliat the Cliristian religion constitutes 
 ])art of the laws of England ; but that law without the means of 
 (uiforcing its precepts would be but a dead letter." — 26 St. Tr. 716. 
 The prisoner hud sentence of imprisomnent and hard labour for one 
 year. i Cowan v Milburn, L. li. 2 Exc. 2;30. 
 
 * Guizot, Eur. Civ. Lect. 4.
 
 CH. ir.] THE FEUDAL LAW. 119 
 
 the state of the nation, and he soon after directed the jireat 
 survey called Domesday-hook, aiter which the principal 
 landliolders, heing sensible of the great advantages of the 
 union and mutual support supplied hy the feudal system, 
 voluntarily submitted their lands to military tenure, and 
 did homage and fealty to the king.^ Hence both sovereign 
 and subject with one consent adopted the popular tenure 
 of the day. So enamoured were the French people about 
 the same time with the new system, that they surrendered 
 their allodial or free lands, so as to hold them from their 
 Icing as a re-grant.^ 
 
 The feudal system was thus generally accepted m 
 England soon after the Conquest, though the learned 
 have speculated much as to the precise time and manner of 
 its introduction, growth, and general adoption there. Some, 
 indeed, think the feudal system is as old as human nature, 
 and that wherever military conquests have been made, it 
 was and is inevitable that the general should have the 
 chief voice in dividing among his lieutenants, and they 
 among their men in the proportion of their respective 
 ranks, the conquered land and its fruits ; and next, that 
 conditions of service should be added so as to mark and 
 rivet the mutual dependence between links of the great 
 chain. Thus the gift of lands for the military service was 
 made by the Eoman emperors Severus and Probus.^ And 
 though in many countries, ancient and modern, something 
 nearly resembling the feudal relation of lord and vassal 
 has been traced, yet, as Hallam and others observe, the 
 exact bond of union is not identical, as in the case of 
 Roman patron and client — the zemindaries of Hindoostan 
 — the timariots of Turkey — the Polish and Ptussian nobles 
 and their vassals. The manners of the ancient Germans 
 seem a sufficiently satisfactory origin of the feudal system 
 to many — without troubling themselves to think how it was 
 that it occurred to the Germans. And the customs of the 
 different French provinces as digested by Beaumanoir about 
 the year 1283, closely resemble those of England during 
 the same period. Moreover the Assizes of Jerusalem, a 
 body of laws compiled by Godefroy de Ijouillon, the newly- 
 elected king, soon after the conquest of Jerusalem in 1099, 
 
 ' Saxon Clironicle, c. 52, c 58. " 2 Bl. Com. 51. 
 
 3 A.D. 222, 216.
 
 120 ON THE LIBERTY OF THE SUBJECT. [intuo. 
 
 on the advice of the wisest men of all countries, are little 
 else than copies of the customs and usa^-es current in 
 France. All this shows how well adapted tlie feudal law 
 was to the minds of those who accepted it, and what 
 confidence they all had in its stability.^ 
 
 It is not necessary in this place to enter into any details 
 as to these matters, for such of them as are material belong 
 properly to another division of law, when the tenure of 
 land requires to be treated. It is enough to notice here 
 generally what has come to be the position which the feudal 
 law now occupies as part of the law of England. At the 
 time when that law flourished it embodied nearly all the 
 law that men cared to know, but it has since shrunk into 
 very narrow dimensions, and is relegated to an obscure 
 corner among the things worthy to be only occasionally 
 remembered. Nations are no longer exclusively engrossed 
 with fighting and conquering their neighbours, and have 
 discovered that there are vast fields of enterprise in re- 
 dressing the wrongs, defects, and oppressions existing under 
 their own internal economy, sufticient to engage the ambi- 
 tion of nobler warriors and more dictatorial dictators than 
 ancient or mediteval times ever produced. Yet as the 
 feudal stamp was so deeply impressed on the land arrange- 
 ments of England as well as on those of its neighbours, and 
 modern rules still current seem so obscure and so mixed 
 up with its history, a general notice of its purport may be 
 here stated, and it may be stated very brieily. 
 
 It is idle to speak of the feudal law as the cause of great 
 mischief to mankind, as it is idle to speak of the evils of 
 infancy or of barbarism. At the time it flourished that law 
 seems to have adequately supplied a satisfactory adjust- 
 ment of the relations arising out of real property, and as 
 slavery was part of the settled system of society, it was 
 natural that the two ideas should be niterwoven in all the 
 arrangements. But when slavery ceased to be accepted by 
 modern nations as a necessary element of society, it followed 
 
 1 1 Hullain, Mid. Ages, 200 ; Montesquieu, b. 30, c. 2 ; 1 Meyer, 
 Inst. Jiidic. 4 ; Tinkerton, Origin o£ Goths, 139 ; Robertson's Cli. V. 
 Stuart's Soc. in Europe ; Barrington's Anc. St. 43'J ; 2 Bl. Com. 48. 
 
 Guizot prefers the derivation of the word feud from /e and od^ 
 a pro|H'rty given in recompense by way of pay or reward. — 3 Quiz. 
 Cio. Fr. Lee. 12.
 
 CH. II.] THE FEUDAL LAW. 121 
 
 that most of this complicated web required to be unwoven 
 piece by piece, till the fatal thread was witlidrawii. The 
 texture may have been irretrievably damaged by this ab- 
 straction, but according to modern views of the object of 
 all laws, we have ceased as entirely to think of reverting 
 for our instruction and guidance to feudal times, as we do 
 of reverting to the Saxon heptarchy, or the practices of 
 the rude tribes described by Tacitus and Ctesar. 
 
 Theory on which the feudal law was founded. — The radical 
 theory of the feudal law was this, that the king is the 
 universal lord and original proprietor of all the lands in his 
 kingdom, and that no man doth or can possess any part of 
 it, but what has mediately or immediately been derived as 
 a gift from him to be held upon feudal services. And the 
 moving cause for the crown granting, and tor each crown 
 vassal making smaller grants to his sub-vassals, was, that 
 each might, as occasion required, render military service, 
 and follow his lord both at home and abroad wherever the 
 demon of war beckoned them. To ratify this bond, the 
 oath of fealty was taken by the vassal or holder of each 
 allotment, or feud, lief, or fee, as it was called. And when 
 the vassal violated his oath by not performing the stipu- 
 lated service, or by deserting the lord in battle, the lands 
 again reverted to him who granted them. Both parties 
 thus closely connected, the lord and his vassal, were mutually 
 bound to protect their respective possessions, and thus a 
 complete network of common interests and correlative 
 support covered the kingdom.^ When the vassal obtained 
 a grant, he knelt before his lord and did homage in pre- 
 sence of other vassals, and received a typical delivery of 
 the land, and became bound to attend the local court of 
 the lord, who assumed judicial power of life and death over 
 all within his barony. The land was held sometimes on 
 the precarious tenure of the lord's will, sometimes the 
 tenant's interest was for a year certain, sometimes for life, 
 sometimes for the son and the heirs of the vassal, and 
 
 1 GuizoT observes justly : " It is often said that tlie feudal system 
 connected by indissoluble links the whole of society. This is a 
 pure theory. In fact, the greater number of feudal lords were com- 
 pletely independent of the sovereign ; a great number had scarcely 
 heard the name of monarchy, and had few if any relations witli it." 
 — Guizot, Eur. Civ. Lect, 9.
 
 122 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 sometimes for the alienees or assigns.^ In each phase some 
 slavish accompaniment was fixed upon, such as fines, reliefs, 
 and other exactions, under the pretence of obtaining the 
 lord's consent or sanction to everything which the vassal did. 
 The habit of dictation on the one hand, and obedience on 
 the other, engendered by so close a connection in barbarous 
 times, soon produced its natural fruit ; and the stronger 
 party gradually imposed on the weaker party more and 
 more conditions and services, and these more or less oppres- 
 sive to tlie vassal, so that the irksomeness of the whole soon 
 began to be felt and complained of during the three first 
 reigns of the Conquest. This in turn, however, was not 
 unaccompanied by some compensating advantage, for it led 
 Henry I. to promise a restoration of the laws of Edward the 
 Confessor, and to grant a charter, which was the foundation 
 of tliat celebrated Magna Charta extorted at Eunnymede 
 from John and confirmed by Henry HI., and which marked 
 so important an epoch in the law. The mutuality of 
 feudal services accustomed kings to consult with their chief 
 subjects. It was especially fortunate for England that the 
 feudal laws fostered a spirit of turbulence and self-reliance 
 in the crown vassals. Hallam says it diffused a spirit of 
 liberty,'' and Guizot describes it thus : " Feudalism did a 
 great service to Inimanity by exhibiting a continual example 
 of individual will developing itself in all its energy." ^ In 
 England it was said wardsliip and marriage, the two harshest 
 incidents, were more prevalent than in other countries. 
 
 The vice of the feudal tenure appears on the surface of 
 its ordinary working. If I bought or hired a piece of land 
 from a man, why should I be so linked to his destiny and 
 share in all his joys and sorrows so intimately, that when 
 his son was to be knighted or his daughter to be married 
 I must pay him large sums; if he was put in prison, why 
 was I to ransom him ? If I died or sold the land, why 
 should my son, or my alienee pay him a large bounty in 
 
 1 Guizot says it is a common mistake, wliich the "Book of Feuds" 
 shares, tliat at first the vassal's interest was always precarions, and 
 then advanced slowly stage hy stage, first to a fixed tcnn, then to 
 interest for life, then for the heirs and assigns. He says all tlicie 
 forms ffourished togelher, and contemporaneously from lir.st to last, 
 ~?i Guizot., Fr. Civ. Lect. 2. 
 
 * 1 Hallam, I\Iid. Ag. 2G8. ^ Guizot Eur. Civ. Lect. 7.
 
 cri. II.] THE FEUDAL LAW. 123 
 
 the form of a relief or fine ? and why should my best horse 
 or jewel belon;:^ to him ? If I committed a crime, why 
 should my land he confiscated by him ? If I left an infant 
 heir, why sliould he insist on being the guardian, and reap- 
 ing tJie profits, and finding that heir a wife ; and if I left an 
 infant heiress, why should he insist on her marrying one 
 of three persons he chose to name, otherwise to pay him a 
 large sum to be off the bargain ? Ail these consequences 
 were so utterly illogical and incoherent, that nothing but 
 the mailed hand and nomadic life and rough rapacious 
 liabits of the camp could so long have perpetuated them. 
 
 Ahusc and decay of that law. — The ultimate effect of the 
 feudal system was to make it impossible for any subject 
 to concentrate in himself the entire rights relating to his 
 land and enjoy absolute property, for as he always held of 
 some lord, tliis dependence in reality required the entire 
 ownersliip to be split up into portions which complicated 
 the title. For though one might have the substantial right 
 or dominium utile, yet the incidents attaching to the lord- 
 ship or superior right detracted from its value, and so in- 
 terfered with and crippled the absolute ownersliip as 
 sometimes to create a forfeiture or total annihilation of the 
 vassal's interest, and at all times he felt himself oppressed 
 with vexatious and irrelevant exactions.^ After centuries 
 of growing abuses arising out of feudal tenures it M'as at 
 length seen that there was not in reality, and ought not to 
 be, any logical connection between the lord and the vassal 
 sufficient to constitute this compulsory and intimate part- 
 nership between them in the land, for by doing so the 
 benefits were all on one partner and the burdens all on the 
 other, and complication and confusion beset both. Each 
 individual ought to be able to enjoy the fuU and absolute 
 rights of property which the law allows, independent of 
 the acts or incidents of third persons, and it was chiefly 
 owing to this change in the views of society that the most 
 preposterous of the feudal characteristics were totally 
 abolished in the reign of Charles II., and a gradual disposi- 
 tion has ever since grown up to convert copyhold and other 
 tenures, the outstanding relics of feudalism, into freehold 
 tenure, that is to say, into an absolute and undivided 
 
 1 The feudal system declined in England very rapidly from the 
 time of Edward L— 3 Hallam, Mid. Ag. 1G5.
 
 124 ON THE LIBERTY OF THE SUBJECT. [intro 
 
 ownership. This species of ownership is the only sound 
 arrangement compatible with a state of society in which 
 slavery is no longer tolerated or acknowledged, and in 
 which business is sought to be facilitated, and free play 
 allowed to the varied operations of commerce.^ 
 
 The civil law, what. — It is necessary to advert to several 
 significations given to the words " civil law." The first 
 meaning is that which puts it in contrast to such phrases as 
 criminal law, military law, ecclesiastical law. The other 
 more limited and special meaning is that which denotes 
 the Eoman law, or the municipal law of the Eoman 
 Empire. The division of the law into criminal and civil 
 has already been adverted to, and it was shown that, 
 though it was not so substantial a division as to be adopted 
 in any systematic exposition of the whole law, yet it was 
 a popular iind convenient mode of separating the treatment 
 of rights according as the violations of law were slight 
 or grave. 
 
 Sometimes also the expressions military and naval law 
 are used in contrast to civil law, as separating those 
 peculiar laws which regulate the military and naval pro- 
 fessions. This distinction is obviously one of mere con- 
 venience, and indicates no fundamental principle. Again, 
 the phrase " ecclesiastical law " is in like manner used in 
 contradistinction to civil law, as indicating those laws 
 wliich peculiarly relate to the Church and the clergy, the 
 rest of the law being in that view described as civil law. 
 These ecclesiastical laws, as alread}^ pointed out, fall under 
 
 1 Tlie feudal law is the delight of antiquaries, and Spelman mar- 
 velled that my Lord Coke had not turned into so fruitful a field. — 
 Spehn. Grig, of Terms, ch. viii. 
 
 Montesquieu admired the feudal system, and compared it to an 
 old and majestic oak. Bentiiam compared it to that fat^l tree the 
 manchineel, whose juices arc poisons to man, and wliose shade is 
 destructive to vegetation. — Bentliam's Princ. of Civ. Code, ch. vi. 
 
 J. S. Mill says the fcMidal law possessed a certain degree of suit- 
 ableness to the wants of the society among whom it grew up, but 
 advancing civilisation heaped law upon law over it like strata in the 
 physical world, and " every struggle in the disjointed condition of 
 the part of tlie Held of law which covers the spot, nay, the very 
 traps and pitfalls which one contending party set for another, are 
 still standing, and the teeth, not of hyionas only, but of foxes and 
 all cunning animals, arc imprinted on the curious remains found in 
 these antediluvian caves."
 
 CH. 11.] THE ROMAN LAW. 125 
 
 the important division of the law, entituled " Security of 
 Public Worship." 
 
 TJiC lloman laic, called the civil laiv. — The civil law, or 
 the Eonian law, was the most elaborate system of muni- 
 cipal law which had held a conspicuous place in the world, 
 until the middle ages slowly developed the laws of modern 
 nations, which contained many new views and settlements 
 unknown to the ancients, and which now, having been 
 matured, have almost entirely cut off the modern from the 
 ancient polity. Justinian's collection of the Roman law 
 was completed by Tribonian and other lawyers about tlie 
 year 53-4, and was current in the eastern portion of tlie 
 empire. In the western part of the Eoman Empire 
 there had previously been an attempt also to consolidate 
 the immense mass of laws then current. Two private 
 lawyers, supposed to have lived in the reign of Constantine, 
 had made collections with that view, called the Gregorian 
 and Hermogenian codes, and the Emperor Theodosius the 
 Younger directed a code of imperial constitutions to be 
 compiled about the year 438, then and thereafter known 
 as the Theodosian code. But when the civil, or Eoman, law 
 is referred to, it is the body of law bearing the name of 
 Justinian which occupies the leading place. 
 
 The body of law called by the name of Justinian began 
 with the code published in 529, and revised in 534, and the 
 digests or pandects in 534. Of these digests,, which were 
 loosely arranged, the extracts from Ulpian constituted about 
 one-third of the work, from I'aulus a sixth, and from 
 Papinian a twelfth. The Institutes accompanied the 
 digests as an introduction founded on the commentaries of 
 Gains and others. Lastly, the novels, or new constitutions 
 were published soon after Justinian's death, which occurred 
 in 565. Justinian's body of law was after 300 years re- 
 placed by the Basilica of Leo, which was republished in 
 945. The Basilica, with some new constitutions of the 
 later emperors, still held favour at ConstantinoiJe when the 
 Turks, in 1453, extinguished the Eastern Empire and its 
 law. In the Western Empire Justinian's laws had been 
 little known, but the study became more prominent at 
 Bologna in the twelfth century.^ 
 
 1 Savigny pointed out the mistake long current, that tlie discovery 
 of the copy of the Pandects at the siege of Anialfi, in 11.35, was the
 
 12G ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 The Commentaries of Gaius, the earliest institutional 
 writer who flourished in the time of the Antonines, were 
 imperfectly known till a copy was accidentally discovered 
 in 1816 liy Niebuhr, and published in 1820, and this has 
 added much to the interest of this branch of legal study. 
 
 Its impoi'tance and application in Engla7id. — The Eoman 
 law will always command the attentive study of all who 
 desire to be assisted by the ripe experience of generations 
 of the jurists of a great and powerful empire, which long 
 held sway over great varieties of tribes and nations. 
 Much of the art of governing mankind, and the art of 
 putting difficulties in train for a solution, is common to all 
 countries, and as the phraseology used by that law has 
 long been current, and been absorbed into all modern 
 languages, and moreover as large portions of that law have 
 been bodily appropriated, or at least adopted with very little 
 variations by several modern countries, the utility of such 
 a study is obvious, and is not so visionary as many practical 
 men represent. In England in modern times the chief 
 sources of interest lie in the law of contracts and the law 
 of servitudes, and the courts of this country have gladly 
 borrowed a ready-made solution for difficulties, which no 
 recognised rule of their own clearly provided for, by 
 resorting to the storehouse of precedents accepted and 
 acted upon in those departments of the civil law.^ 
 
 Though the Eoman law has no intrinsic authority in 
 
 means of first diffusing a knowledge of that part of the Roman law, 
 as other copies were studied before that date. — 1 Hallam, Const. 
 i/. 63; 2 Guizot, Cio. Fr. Lect. 11. 
 
 At certain epochs the tenets of the civil law fascinated ruder 
 minds, and we are told that at Florence the copy of the civil law 
 was deposited as a sacred relic in a rich casket, bound in purple, and 
 exhibited to travellers by monks and magistrates bareheaded, and 
 with ligiited tapers, as if it had been a divine revelation. — Brenck- 
 mun, b. i. ch. x. 
 
 1 Savigny : " Our admiration of the Romaii law is almost entirely 
 confined to its theory of contracts. The remainder of this law 
 might have been discovered by plain good sense, without any 
 juridical cultivation, and for i^o slight a gain it is not worth while to 
 invoke the laws and lawyers of two thousand years to help us." — 
 Savujny, Voc. of (he Age (tr. by Hay ward), 43. 
 
 Fabkr and Hottoman (IGIO) o])posed the study of the Roman 
 law as full of obsolete doctrines, which gave no assistance to modern 
 lawyers in njatters of daily occurrence. Hottoman said not one-
 
 CH. II.] THE EOMAN LAW. . 127 
 
 England, yet the English law in the time of Bracton and 
 the earliest writers was largely made up of extracts and 
 adaptations from the summaries of that law then current 
 amont? learned men in all countries.^ Though Coke and 
 others resolutely maintained, that the English common 
 law was indigenous, this view is opposed to the common 
 knowledge and habits of international intercourse which 
 prevailed in the twelfth, thirteenth, and fourteenth 
 centuries. 2 England partook of the common heritage of 
 the age. Yet in modern times even Bracton's authority 
 is not conclusive evidence of what was the ancient law 
 of England, vmless it further appears from subsequent 
 writers or reports, that the courts had acted upon it. Thus 
 in the case as to the right of the public to go along the 
 banks of navigable rivers and use them as towing paths, 
 though Bracton, using the same language as the lioman 
 law, said the right existed, and Holt, C. J., in a dictiuii 
 approved of it, yet the court on second thoughts and fuller 
 consideration found that the rule was nowhere referred to 
 or acted on in subsequent times, and rejected the claim 
 altogether.^ And for a like reason, in the memorable case 
 in 1821 where the public claimed a right to pass over any 
 private part of the sea- shore to get at the sea for purposes 
 of bathing, and the dicta of Bracton and the Eoman law 
 were relied on for the public right, the court held that there 
 was no evidence that such a rule had ever been adopted in 
 this country, that it was in conflict with other admitted 
 rules, and the public claim was accordingly rejected.'* The 
 Roman law was, however, followed in the solution of 
 novel and perplexing questions which have arisen in our 
 courts as to the mutual rights of owners of lands throu<di 
 
 twentieth part of the Roman law survives, and of that not one- 
 tenth can now he of any utihty. — 2 Hulluin, Lit. II. 172. 
 
 Thibaut. — The Romans cannot be said to have done much towards 
 systematising hiw. — TliibuiiVs Syst. d. Pandek. part i. ch. i. 
 
 Gibbon says "the public reason of the Romans has been silently 
 or studiously transfused into the domestic institutions of Europe. It 
 has exhausted many learned lives, and clothed the walls of spacious 
 libraries." — Decl. Rom. Emp. ch. xliv. And ]\Iilman says the Roman 
 mind had a genius for law. — 2 Milman, Lat. Chrint. 11. 
 
 ^ See Guterbock's Bracton, by B. Coxe. 
 
 * Tiraboschi, Hist. Lit. » Ball v Herbert, 3 T.R. 253. 
 
 * Blundell v Catterall, 5 B. & Aid. 304.
 
 128 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 whicli undergroimd water flows ; ^ as to easements : ^ as to 
 alluvinni of the sea : ^ and as to bailments.^ And^the prin- 
 ciple of the civil law was adopted and acted on, tliat wlien 
 the performance of a contract depends on the continued 
 existence of a thing or person, the perishing of such person 
 or thing excuses the contractor from performance.^ 
 
 The canon Imv. — Another species of law, which is to some 
 extent more closely connected with the law of England 
 than the civil law, is the canon law, or that body of Eoman 
 ecclesiastical law which had grown up in the middle ages. 
 This law is a digest of the opinions of Latin fathers, the 
 decrees of general councils and the decretal epistles and 
 bulls of the holy see. It borrowed many of its principles 
 and rules of proceeding from the Eoman law. It was 
 collected by Ivo in 1114, and afterwards methodised by an 
 Italian monk named Gratian, about the year 1151, and 
 hence generally called the Decretum Gratiani. Collections 
 of later decrees were published under Pope Gregory IX. 
 and Boniface VIII., Clement V. and John XXII. All 
 these form a body of law called the Corpiis Juris Canonici. 
 Besides these, there were laws of a like kind local to 
 Enoiand. Certain legatine constitutions were enacted 
 in national synods, held under the Cardinals Otho and 
 Othobon, legates from the Popes in the reign of Henry III., 
 about the years 1220 and 1268. Certain provincial con- 
 stitutions were also enacted in provincial synods, held 
 under the Archbishops of Canterbury between the reigns 
 of Henry III. and Henry V., and adopted in the province 
 of York in the reign of Henry VI.*" 
 
 At the time of the lieformation Parliament contemplated 
 that a review of the canon law should be made, and enacted 
 that until such review all canons, constitutions, ordinances, 
 and synodals provincial, then already made and not repug- 
 nant to the law of the land or the king's prerogative. 
 
 1 Acton V Bluii'lell, 12 M. & W. 324 ; Cliasemore v Richards, 
 
 7 H. L. C. 387. 
 
 2 Smith V Kenrick, 7 C. B. 565 ; Baird v Williamson, 1.0 C. B,, N.a 
 .376; Humphries v Brogden, 12 Q. B. 239; Rowbotham v Wilson, 
 
 8 H. L. C. .348. 
 
 3 Gifford V Yarborough, 5 Bing. 163. * Coggs v Bernard, 2 L. 
 Raym. 909. « Taylor v Caldwell, 3 B. «fe S, 826 ; Appleby v Meyers, 
 L. R. 2 C.P. 661. ' 1 Bl. Com. 82.
 
 CM. ii.J THE CANON LAW. 129 
 
 should be still used and executed.^ This statute has often 
 been supposed to have introduced to England to some 
 extent the canon law as it then existed, and as the con- 
 templated review has never taken place, the authority of 
 such laws as existed before that date has been treated as 
 continuing. There -were canons enacted by the clergy undei- 
 James I. in 1603, which were never confirmed by parlia- 
 ment, though approved by the king, and as to these Holt, 
 C. J., and L. Hardwicke thought that, though binding on the 
 clergy, they are not binding on the laity.^ The provincial 
 constitutions, however, collected by Lyndewode have always 
 been recognised by the ecclesiastical and also the common 
 law courts as having authority, where they relate to the 
 general usages of the Church.^ 
 
 The usage whicli hiis prevailed under the joint operation 
 of the statutes and of the provincial constitutions, founde ' 
 as these were on the general common law, has long been 
 appealed to as a part of the law of England, in questions 
 that have from time to time been raised with reference to 
 matters of ecclesiastical law. Hence it is not unusual to 
 speak of this as the ecclesiastical common law.'* And while 
 our courts have often repudiated the authority of the canon 
 law so far as it is a system emanating from the Pope, yet 
 that modification of it which has prevailed in these provin- 
 cial constitutions has been as expressly recognised.^ Hale 
 observed, that it was only by an act of the supreme civil 
 power of this country, that any authority could be given 
 to the law prevailing in other parts of the world ; and by 
 no other authority could the canon law of Europe come to 
 be part of the law of England.^ 
 
 1 -25 Hen. VIII. c. 19, revived by 1 Eliz. c. 1. 
 
 2 Croits V Middleton, 2 Atk 650, 2 Sir. 1056 ; R. v Bp. Lichfiekl, 
 •2. W. Bl. 968 ; Bp. Exeter y Marshall, L. R. 3 H. L. 17. 
 
 3 Martin V I\raconochie, L. R. 2 Adin. & Ecc. 116, 153. 
 * Per W/utclock, Evans v Owen, Godbolt, 432. 
 
 " Per Tiiuial, C. J., and Abimjer, C. B., R. v Millis, 10 01. Sl 
 F. 678, 745 ; Wilson v Mc^Math, 3 Philliui. 67, 78 ; Sandarb v 
 Head, 3 Curt. 565, 583 ; Martin v Maconocliie, L. R. 2 Adm. & 
 Eccl. 195. 
 
 « Hale, C. J., quoted, Middleton v Crofts, 2 Atk. 669 ; R. v Millis, 
 10 CI. & F. 578. 
 
 " The superiority of the ecclesiastical to the temporal, or at least 
 tlie absolute independence of the former, may be said lu be the key- 
 VOL. 1. K
 
 130 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 All that part of the law of England which has grown 
 out of the canon law, may now be said to belong to 
 that division of the law entituled " the Security of 
 Public Worship." It is true that the subject of wills and 
 marriages had long been appropriated by the ecclesiastics 
 as their own peculiar domain, but their influence has now 
 been wholly eliminated from these branches of the law, 
 and their administration entrusted'to the oi'dinary courts, as 
 will be explained under the division of the law entituled 
 " Judicature." 
 
 Distinction of common and statute law. — The general 
 nature of all laws being this, that they are the restrictions 
 imposed on the conduct of individuals in a great variety 
 of situations, it is a natural question thence arising, How 
 the courts of justice arrive at a knowledge of what the 
 law is, out of what sources, in what quarters they inquire 
 f<ir it, and what is the form in which it is found ? In 
 such an inquiry the lirst thought is, that as there is 
 now a legislature existing, and which is presumed to exist 
 for the sole purpose of altering the preceding law, and 
 creating new laws, so we must assume that there has 
 always been a legislature either in its present form or in a 
 more rudimentary form, but still endowed with substan- 
 tially the same powers, and standing in the same relation 
 to the changing wants of society. 
 
 When the legislature in the present day declares a new 
 law, it does so in the form of a statute, and we can trace 
 a series of such statutes extending back for some centuries. 
 Many of tliese are deemed the old statutes, before the 
 reign of Edward III., and the new, or later, statutes after 
 that date ; one of the older statutes is that which is 
 generally known as Magna Charta, a charter which was 
 granted, as Hale observes, " in a parliamentary way." The 
 (dd statutes have, indeed, been called by Hale part of the 
 common law. But the series of statutes from Edward 
 III., which is an orderly series, down to the present time, 
 discloses a large and fruitful source of the laws, for the 
 theory is, that a statute, however ancient, remains in full 
 operation and effect until it is altered by some other 
 statute of a subsequent date. This doctrine, according to 
 
 note which regulates every passage in the canon law." — 2 Hallam. 
 Mid. Ag. 204.
 
 CH. II.] ORIGIN OF COMMON LAW. 1.^1 
 
 Hale, applies at least to all the statutes made subsequent 
 to the accession of Edward III., there being previous to 
 that epoch some uncertainty as to what the constituent 
 elements of a statute then were. 
 
 But this long series of statutes, voluminous and detailed 
 though it be, does not account for the Avhole of the laws 
 iinder which we live, for there are numerous principles, 
 rules, and maxims, which are found in force at a period 
 antecedent to all existing statutes, and the origin of which 
 cannot easily be traced or accounted for ; and yet their 
 influence penetrates all the operations of daily life. This 
 large body of law, which is distinct from the statute law, 
 is called the common law, and where the laws of England 
 are spoken of generally, they mean the sum of these two 
 divisions, which are the complement of each other, neither 
 of them being complete without the other. 
 
 Written and univrittcn laiv. — This great division of the 
 law into common law and statute law is sometimes used 
 as synonymous with the division into the unwritten and 
 the written law, because statutes have been, as a matter of 
 course, committed to writing, and latterly to print, and 
 published as the declarations of the legislature addressed 
 to the public at large : while, on the other hand, the com- 
 mon law was not to be found recorded in any systematic 
 code or book, but so far as not embodied in the oldest 
 statutes, has been handed down as a tradition from gene- 
 ration to generation in the form of maxims or cus- 
 toms. And yet, though the common law is in its origin 
 nothing but oral tradition, it is searched for with greatest 
 success in certain well-known repositories, which are 
 printed and published, namely, the decisions of courts 
 of justice, and treatises of great antiquity, as well as in 
 general reasoning upon principles recognised in those two 
 collections. 
 
 Origin of the common laic. — But though the statute law 
 speaks at once to the reason with commanding effect, 
 being the declaration of the sovereign authority of the 
 state, and binding upon all the subjects of the realm, much 
 curious speculation has been spent on tlie inquiry how the 
 common law came also to be equally binding and of still 
 greater autljority at an earlier period— from what source it 
 sprung, and by what combmation of circumstances it has 
 
 K 2
 
 132 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 come down from age to age, strengthening with our 
 strength, and becoming more sharply defined in its main 
 features as its antiquity has increased. 
 
 In all laws there must, for like reasons, he a fundamental 
 distinction somewhat analogous between the written and 
 unwritten law, for tlie origin of writings can be traced, 
 and still there must have been an antecedent law which 
 those writings displaced or modified, as well as a mode of 
 interpreting and acting on ^A-ritten laws which is not 
 expressed in the body of those laws themselves. In the 
 Koman law the distinction was of little note, and was 
 somewhat literally apphed, for written law was deemed to 
 include only what was originally committed to writing, 
 such as the laws of the populus and jj»/(;Z>5, the senatus 
 consuUa, and constitutions of the emperors, as well as the 
 edicts of praetors and magistrates, and the responses of 
 jurisconsults ; while that part of the law, consisting of 
 rules of practice and of argument, and orally used and 
 referred to, but not recorded, and known as customary law, 
 was called the unwritten law.^ 
 
 Though this distinction has always been drawn between 
 the written and unwritten law, lietween the statute law 
 and the common law, it is a distinction which indicates 
 little more than the origin, or rather the form in which the 
 law has been promulgated, for it is obvious that whether 
 a law, if properly made, has been immediately put into 
 writing and printed, or has circulated as an oral tradition, 
 can make no real difference as regards its binding effect. 
 It may be more difficult to ascertain and interpret an 
 oral law than one that is put into articulate language;^ for, 
 the more vague and general a law is, the more difficult 
 it is to be applied and acted upon, and vagueness is more 
 likely to attach to a law which circulates in the memory 
 of the people than to one which is recorded in written 
 language, and which the rules of interpretation can tix 
 with reasonable certainty. 
 
 Statute, law is supphmeniary to common laui — I)nt though 
 the mere distinction between common law and stat\ite law 
 is based on the original medium in which each law is 
 found, rather than on the subject-matter of the law itself, 
 
 1 Dig. i. 1, G.
 
 cii. 11. STATUTE LAW AND COMMON LAW. 1.33 
 
 there is also a lai'fje and important difference in their scope 
 and mutual relations. The statute law is in strictness 
 merely supplementary to the common law. The conunon 
 law, however it may have originated, is assumed to have 
 formed the sum total of the laws governing the community 
 before statutes were made and published. Being the sum 
 total of the law, it is further assumed, and this assump- 
 tion is the most remarkable of its characteristics, to have 
 provided for nearly all the ordinary evils which laws could 
 cure, and to have supplied the remedy for nearly every 
 wrong, at least such as were prominent at that remote age. 
 It has been and still is the province of the legislature to 
 discover and amend the common law in those points where 
 it is vague and inadequate, or fails to meet the exigencies 
 of the time The whole series of statutes embody these 
 results of legislative vicjilance. Hence, in order to under- 
 stand thoroughly what a statute means, it is often necessary, 
 and always useful, if not indispensable, to know what was 
 the state of tlie common and statute law on the subject 
 antecedently to the statute in question. When that pre- 
 liminary knovv'ledge is acquired, the task of interpretation 
 is greatly facilitated, for, as will be seen hereafter, one of 
 the canons of interpretation is, first to ascertain, what was 
 the evil or mischief in view of the legislature when the 
 statute was passed. 
 
 There is in civilisation no rule more clearly established 
 than this, that the exposition of the law shall be left to 
 the courts, and the declaration of new law be left to the 
 legislature ; and as a corollary to this the maxim is in- 
 exorable, that when once the legislature has spoken, those 
 words cannot be unspoken by any power except the legisla- 
 ture itself. Once a statute, always a statute. Nothing 
 short of a new statute is required to repeal a piior statute, 
 and no length of non-user will ever render the wonls of 
 a statute less obligatory and less decisive than they were 
 the first day the statute was published. This, however, 
 was by no means the ancient idea of legislative action. 
 The notion that a statute became void, when the king who 
 was the chief actor in passing it died, or when it had been 
 long neglected, was current in England in early times, as 
 it was current then and much later in other countries. 
 The ancient doctrine was, that statutes could go into
 
 134 ON THE LIBERTY OF THE SUBJECT. [i^tro. 
 
 desuetude by neglect.^ Hence the practice so common in 
 the reigns succeeding that of John, of republisliing Magna 
 Charta at the commencement of each new reign, and even 
 at the commencement of a new parliament.'^ And Eichard 
 II. had an ordinance that all previous statutes be kept, 
 which shows how loose were the notions at first enter- 
 tained as to the indelibility of statutory law. 
 
 Theories as to origin of common law. — Several theories 
 have been current as to the mode in which the common 
 law originated, thouG[h Lord Hale said its orifrinal was as 
 undiscoverable as the head of the Nile,^ and Fortescue and 
 Coke, as we have seen, are extravagant in antedating its 
 rise. Not a few resort to the ingenious fiction, that the com- 
 mon law is merely a collection of ancient statutes which 
 have been worn out ^ by time, but of which the purport 
 and bearing have lingered in the memory, and have been 
 handed down as traditions from age to age.* This theory 
 indeed eludes all the lessons of history, and as an explana- 
 tion it in reality amounts only to this, that some of the 
 statutes are a little older than we suppose, while the point 
 to be elucidated is the state of things antecedent to statute, 
 for statutes after all indicate an advanced stage of 
 society. Another theory is, that the common law is merely 
 a collection of the general customs found universally 
 current, and acted on by the people. Special or local 
 customs are familiar in many branches of the law at the 
 present day, as will be seen in subsequent chapters ; but 
 their operation is not universal. Local customs are confined 
 to a limited area, and to limited classes of people, and often 
 to special times or occasions ; and as such they are devia 
 tions from or exceptions to the general law, and binding 
 on a limited part of the community only, or at least on 
 
 1 Barrhigton, Stat. 186. 
 
 The Konians had a principle, tliat by long disuse a law became 
 void and of no effect. — Gic. in Verr. v. 18; Inst. 1, 2, 11 ; Dip. 
 1, 3, 32. Ill Scotland this doctrine is applied to all the Scotch 
 statutes passed before the Union in 1707. 
 
 a 5 Ed. 2, Ord. c. 27 (Stat. Realm.) » Hale, Hist. C. L. r..",. 
 
 ■* Hale favours tlie explanation, that rules, now treated as coinnion 
 law, were acts of parliament, though not now found of record. — 
 llale^a IJiM. C. L. 60. Wu.MOT, C. J., said : "The common law is 
 ni (tiling else but statutes worn out bv time." — Collins v Blantern, 
 2 Wils. 348. See 2 Hall. Mid. Ages, 339.
 
 nil. II.] ORIGIN OF COMMON LAW. 135 
 
 such part of the community only as come within a limited 
 area. 
 
 By a furtlier rreneralisation it is assumed that there were 
 also customs which were so adapted to the wants of society 
 as to become of universal acceptation, and binding on all 
 the public without any exception. These general customs 
 were said to constitute what is otherwise called the com- 
 mon law. Such an explanation, however, seems not to 
 advance our knowledge in the least, for what we want to 
 know is how those rules, whether called customs or common 
 law, or by any other name, became such, and at what epoch 
 or by what transitions, and under wdiat influence. 
 
 The account given of the origin of the common law has 
 seldom been satisfactory,^ and yet there must be the same 
 difficvdty felt as to the origin of the laws of all civilised 
 communities. The obscurity of the origin seems some- 
 times to be even a matter of pride, for another branch 
 of the theory relating to the common law is, that not 
 only was it in existence before all statutes now known, 
 but no time can be named when it w^as not in full vigour, 
 and when it did not regulate all human affairs ; and though 
 the precise tenets of the common law are now chiefly 
 searched for in the old decisions of courts or ancient 
 treatises, our authors all assume that those decisions did 
 not create, but that they merely expound, the common 
 law as rules which antecedently existed, and are a kind of 
 secondary evidence of what the law was, but do not 
 constitute the law itself. 
 
 The convenience of this theory lies in this, that if two 
 or more ancient decisions or treatises do not agree, this 
 variance is set down merely to the imperfect exposition or 
 apprehension of the courts, but does not conclusively show 
 any imperfection or great defect in the original law. For 
 the common law is assumed to have been a perfect code, 
 or nearly so, furnishing a remedy for nearly every wrong; 
 and if that remedy cannot now be sufficiently traced and 
 appreciated, it is said to be the fault of the medium through 
 
 ' Bentham indignantly observes : " The common law was made by- 
 nobody : not made by king, lords and cnnnnons. nor by any one else : 
 the words of it are not to be found anywhere : in short, it lias no 
 existence : it is a mere iiction : and to speak of it having any 
 sxistence is to give currency to an imposture." — 4 Benth. Worka^ 504.
 
 136 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 whicli tlie knowledge was conveyed to its. It is at all 
 events assumed to be a code nearly exhaustive of every 
 remedy which law can supply, and free from delects of at 
 least any importance, according to the notions and habits 
 of the age in which it flourished.^ And Blackstone, 
 carried away by this view, remarks, " It is one of the 
 characteristic marks of English liberty that our common 
 law depends upon custom : which carries this internal 
 evidence of freedom along with it, that it was probably 
 introduced by the voluntary consent of the people." ^ That 
 passage, it has been justly remarked, involves this error, 
 that it implies that customary law was the source of 
 English liberty, whereas the customary or common law 
 involved and recognised the serfdom of the lower classes 
 during the middle ages and down to the age of Elizabeth, 
 and there was little of real liberty in that arrangement of 
 classes.^ The real origin of the common law, as an acute 
 writer has remarked, has been too much extolled, and we 
 must look to no higher or more authoritative origin than 
 the decisions of such judges and courts as expounded the 
 law, or what corresponded to law, at a time antecedent to 
 all knoAvn statutes.'^ iSTor can it be said with truth, that, 
 because general custom may be assumed to have been 
 accepted with the consent of the people governed by it, it 
 is on that account more favourable to liberty. For the 
 liberty of most nations has been effected by the legislature 
 altering the custom, and often in the proportion to which 
 
 1 "Wliile the unwritten law in this country is found in thodeoisions 
 of the judges, who are, as Blackstonk saj's, the living oracies, its 
 discovery seems in other countries to have been left to more pre- 
 carious resources. We are told that in parts of the Continent the 
 unwritten law was in disputed cases proved by witnesses, till the 
 customs were consolidated into written statements or statutes. — 
 Canciani, Leg. Barh. b. 5, p. 13 ; (.■/ iannone, Hist. Naples, h. 21 ; 
 Dupin, Hist, of Fr. Lair. 
 
 Tlie Roman law is said to have also recognised inveterate custom 
 as equivalent to law, or as a mode of originating law equal to a 
 statute. — iJig. 1, 3, 32. And the great jurists who devoted themselves 
 to the study of the law also added more or less to the code of rules, 
 by publishing tlieir oi)inious, which became insensibly adopted from 
 time to time by all the public as well as by the legislature. The 
 Tff^jmnsa 2>riidentium, unlike the opinions of eminent counsel in this 
 couniry, were used by the Roman courts as part of their materials. 
 . ^ 1 Bl. Com. 74. 3 2 Aust. Jur. 559. " 2 Aust. Jur. 560.
 
 rn. 11.] CUSTOMS GROWING INTO LAW. 137 
 
 that legislation has receded from and overturned such 
 custom, has the glory of modern law heen most coii- 
 sj)icuous. 
 
 How customs groiv into common law. — Supposed sitpcriorlty 
 cf common laiv over statute law. — To ask how it is that 
 customs come to be universal, and thus tacitly grow into 
 the general law, is not less idle tlian to ask why human 
 tendencies and faculties were made as they are, and why, 
 in spite of ourselves, we sooner or later agree with our 
 neighbours, or they with us, not only in our habits and 
 modes of action, but, as far as can be ascertained, even in 
 many of our secret thoughts. This unity of thought and 
 sentiment is the law of our being, and while circumstances 
 of race, of climate, of soil, of neighbourhood, of battles, 
 victories, and defeats give a predominance to some one 
 virtue or defect, the result nevertheless is, that the sub- 
 stratum of rights enjoyed, or at least aspired to, by the 
 subjects of all countries is much the same, and national 
 peculiarities, or rather national defects and incapacities, 
 play a comparatively small part in every municipal code. 
 But whatever may be the laws which have been derived 
 from custom, these are always necessarily vague and 
 uncertain, and for no other reason than because the less a 
 community has advanced towards civilisation, the more is 
 its legislation incapable of those nice distinctions of thought 
 and language which civilisation sooner or later brings in 
 its train. Justice and riglit are at first expressed in 
 general phrases, and often are enunciated in poetry or 
 sounding verse.^ And though, when administered by 
 vigorous and impartial judges, language of wide import 
 lieips rather than impedes sound decisions, yet civilisation 
 can never rest till it searches out more detailed, accurate, 
 and appropriate provisions and appliances of justice, than 
 any common law can ever dream of. Distinctions are 
 
 ^ The laws of Pittacus were said to be in verse. And the laws of 
 Charondas were also uttered in verse. — Gibb. Decl. and F. ch. xliv. 
 In ancient Erin, if the legislature did not in early times speak in 
 verse, it was, at all events, the practice to give to the poets the office'of 
 expounding the law, until, on a memorable occasion, a dechiTnatory 
 exposition of one ratio decidendi led to the poets being discarded, and 
 the profession thrown open. And this change produced excellent 
 results. — 2 O'Cumfs Led. 2 ; 3 Anc. Laics Irel. ch. lii.
 
 ms ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 drawn, exceptions are discovered and allowed, procedure is 
 amended, punishments graduated, jurisdiction defined, as 
 society advances. 
 
 Supposed superiority of common law over statute law. — 
 Judges, however, following Coke, are to be found, w^ho, 
 forgetful of these things, utter vain regrets that the brevity 
 and the breadth of the common law have been overlaid 
 and encroached upon by materials that have spoiled its 
 symmetry. They forget that the common law, being 
 conceived in an age of comparative barbarism, is devoid 
 of that flexibility and adaptation, which the wisdom of 
 judges themselves alone has given to it. It is this latitude 
 and amplitude of discretion invariably vested by the 
 common law in its administrators, which make the latter 
 insensibly cling to it so closely. But the unerring instinct 
 of civilisation demands above all things that law shall be 
 certain, discriminating, and easily understood by those 
 who are to be guided by it, and certainty cannot in general 
 be attained without particularity and copiousness of 
 expression, and these again in turn not seldom degenerate 
 into diffuseness and tautology. Thus, while judges are 
 too frequently apt to view the common law as inherently 
 superior in quality, as it undoubtedly permits and demands 
 wider excursions in reasoning, those who have to obey 
 both are more inclined to prefer the statutory law for no 
 other reason than because they know it to be more minute 
 and painstaking, more sedulously framed so as to dis- 
 tinguish between classes of circumstances, more easily 
 known and discoverable, more zealous to facilitate pro- 
 cedure, to bring justice home to each and all, and so 
 attain a higher standard of right — a system of rights better 
 adapted to the varying conditions of the governed. There 
 is no real repugnance, because there is no common ground 
 of comparison, between the common law and the statute 
 law. The former is the normal municipal law ; the latter 
 grows out of it, and is always intended to rectify, and 
 improve, and expand the former. They are mutually the 
 complement of each other. Nations cannot help beginning 
 with the former, and cannot help ending with the latter. 
 
 The common law is indeed to this day the storehouse 
 of many of the leading principles on which our rights 
 depend, for though the statutes embody masses of specific
 
 'H. II.] COMMON LAW AND STATUTE LAW. 139 
 
 laws, tliese were cliiefly designed to meet special cases of 
 hardship. And probably on this account a habit has 
 grown up of viewing tlie statutes as treating only of things 
 evanescent and changeable, in contradistinction to those 
 more solid and enduring elements elsewhere found, and 
 which are superior to change. This is, however, an error 
 that requires constantly to be corrected. The common 
 law could only supply rules and maxims of right, applic- 
 able so far as the circumstances of the age had developed 
 rights and wrongs, or rather the occasions which gave rise 
 to the necessity of laws. But as society is progressive, 
 as new wants arise with each generation, and new customs 
 inevitably supervene to displace the old, it is obvious that 
 the common law requires to be always recruiting from the 
 statutes, in order to keep abreast of the times, and so as 
 to satisfy the rising standard of justice as it grows and 
 expands from age to age. Without this elastic principle 
 the best common law must soon develop the seeds of its 
 own decay.'- 
 
 Volicminousness of statutes. — Not a little of the distaste, 
 if not contempt, which lawyers too often evince for the 
 statute law as contrasted with the common law, is the 
 extraordinary diffuseness and voluminousness of the 
 former. Not only are the general statutes composed of 
 details too vast for any human memory, and composed in 
 a barbarous and debased technical language, but over and 
 above the general statutes there are local statutes and 
 groups of statutes regulating every several town, corpora- 
 tion, and district, every body of commissioners, every 
 railway, harbour, and local improvement board in the 
 kingdom. The details of each of these groups of statutes 
 
 ^ Lord Mansfield rhetorically observed tliat "A statute very seldom 
 can take in all cases ; therefore" the common law, that works itself 
 pure by ndes drawn from tlie fountains of justice, is superior to an 
 act of parliament."— 1 Atk. 32. 
 
 It is well to hear what an acute intellect, but not that of a lawyer, 
 has to say on this point. " Blackstone speaks with unconunon 
 respect of the old common law, which the generality of lawyers 
 iiighly prefer to the statute law. Pie will tind it, however, ditlicult 
 to persuade an impartial reader, that old customs/begun in barbarous 
 ages and since continued from a blind reverence to antiquity) desen^e 
 nu)re respect than the positive decrees of the legislative power."— 
 5 Gibbon, Misc. Works, 546.
 
 140 ON THE LIBERTY OF THE SUBJECT. [ixtro. 
 
 must be kept in view by tliose aaIio live in the par- 
 ticular locality affected, if they wisli to know all the 
 law that governs their interests, and which comes home 
 to them. The strain on the memory of man is thus 
 prodigious, when all this law that is common to the whole 
 empire, and all that is applicable to each separate locality, 
 are taken together as the rule of conduct and the test of 
 right and wrono-.i 
 
 Judiciary, or judge-made law, lohat. — A statute, inasmuch 
 as it is the most direct and immediate act of legislation, 
 and_ the voice of the legislature itself, is, however, to be 
 distinguished from certain other indirect and circuitous 
 modes of originating rules of law. Thus the courts, as 
 the proper and only authentic expositors of what the law 
 is, find it impossible to carry on the work of interpretation, 
 exposition, and application of the law to individual cases, 
 without establishing certain subordinate rules of procedure 
 as well as principle, and these in turn operate as a species 
 of derivative legislation. In truth, however, these rules of 
 practice and procedure are to be viewed as nothing more 
 than the tools or weapons, with which the courts exercise 
 their proper functions. No man in the business of daily 
 life can carry on the commonest handicraft without 
 generalising the work which he undertakes, and setting 
 about what he does according to certain rules and methods 
 which practice has proved to be the simplest, and shortest, 
 and easiest for its furtherance, and which after a little 
 experience become a second nature, and influence him 
 unconsciously. The carpenter uses his saw or his hammer, 
 the woodman his axe, the ploughman his team, and the 
 compoeitor his type according to well-established methods, 
 and tliese have become a secondary law of themselves. 
 Every trade and occupation of life has its appropriate 
 method of work, and a certain routine in all its multifarious 
 appliances, which may, in a popular sense, be called the law 
 of that trade. In like manner courts and judges set about 
 the business of expounding and applying the law according 
 
 ^ Dunning said Uiat lio professed to know the cliief rules of tlie 
 cornmoii law, and to carry tliein in liis memory ; but as to the statute 
 la,w, the utmost lie could do for his clients or anybody else was to 
 give an opinion as to the construction of a particular cn&ctment 
 when it was placed before him.
 
 CH. ii.j JUDGE-MADE LAW. 14f 
 
 to well-known methods, which when stated in detail seem 
 to be the mere creation of some iinrecognised legislative 
 function, wliereas the whole is referable to the necessary- 
 action of reflective beings, who insensibly generalise as 
 they proceed, and settle into some approved routine, what- 
 ever be the work that is undertaken. 
 
 H^ecessity of judge-made laio. — The great body of what 
 has been called judge-made, or judiciary law, is wholly 
 attributable to this tendency of all human employments, 
 and so far from such law being stigmatised as having been 
 invented without authority and entitled to little respect, 
 it is impossible in any system of jurisprudence to dispense 
 with it. It is on the same footing as all other expositions 
 and adaptations of law. The bye-laws made by corpora- 
 tions, collegiate, and statutory bodies invested with ad- 
 ministrative powers are ail examples of the same tendency. 
 No code could descend into all the minute particulars to 
 which it is found necessary to enforce attention in con- 
 ducting local affairs and carrying out special purposes ; 
 hence the same result is secured by investing some body or 
 authority with necessary powers to carry out the general 
 purpose, and to define through the medium of bye-laws 
 tiie methods by which it is to be secured. The tendency 
 of all persons charged with general duties to use sub- 
 ordinate rules and methods in carrying out their work is 
 an inevitable accompaniment of such work. When a general 
 sends his officer to execute a certain operation in the field, 
 it is impossible to give even in outline all the details of 
 the process or the successive steps l»y which the result is 
 to be arrived at. Much of the detail must be invented 
 ])y the subordinate charged with the execution of the work 
 as each step of the work advances. In the same way, 
 judges and courts, who have the duty of applying a general 
 rule or statute, must inevitably invent many of the details 
 of the machinery, and so give rise to what has been called 
 judiciary law, but which is of equal authority with any 
 other description of law.i 
 
 The mystery surrounding the growth of what is called 
 the common law, and all that law which cannot be traced 
 
 1 In Rome the province of legislation wa>^ silently invaded by tlic 
 expounders of ancient statutes, such as the Twelve Tables.^G/Wt^H, 
 Horn. Emp. ch. xliv.
 
 142 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 directly to any statute or express declaration of the legisla- 
 ture, seems to be removed to some extent by the reflection, 
 that in the early stages of all organised societies the 
 judicial or expositive and the legislative functions are 
 conjoined ; ^ and it is only in the course of widening ex- 
 perience of its inconveniences, that the two functions 
 become separated, just as in highly civilised communities 
 all labour becomes subdivided, and this in turn leads to 
 improved results. Even after the Norman Conquest the 
 Aula Kegis, or great court-baron of the kingdom, was a 
 court of justice as well as the sovereign or supreme 
 legislature,'-^ and the House of Lords has held this double 
 function, derived from ancient practice, though latterly 
 there has been considerable modification, and the legislative 
 function has been entirely separated from the judicial in 
 all except in name. 
 
 Ohjedions to judge-made Imv ansivcred. — Notwithstanding 
 the very obvious reason why judiciary law is inevitable, 
 some authors have with little reflection denounced it as if 
 •it were a fraud on the legislature and on the public — as a 
 counterfeit of a statute without the authority or weight 
 which a statute commands.^ Tlius Bentham says judiciary 
 law is not properly law, but is at most a qiiasi command 
 or something analogous to a command. The answer to 
 
 1 In rude ages the legislative and judicial functions have generally, 
 if not always, been vested in the same hands. 'J'he patriarch was law- 
 giver and judge in his own family and clan. Among the American 
 Indians the chiefs in council are judges, legislators, and executionei-s. 
 ■ — 1 Schooler. Ind. 261, 274. The early Roman kings and the monarchs 
 of the East sat on their thrones and administered justice to all 
 comers. — Liny, b. i. c. xl. ; Diod. i. 74. The populus of Rome, 
 which was the supreme legislative body, was also the judge in capital 
 cases. The Micklemote or Wittenagemote of the Anglo-Saxons was 
 both the legislature and a court of justice. Among the Kaffir tribes 
 at this day the chiet and his council combine the legislative, judicial, 
 and executive function.^ — Maclean'' s Kafirs, 32. And the feudal 
 chiefs were judges and executioners within their respective terri- 
 tories. 
 
 2 The judicial business of the Curia Regis was supposed not to be 
 separated from its legislative, till the reign of Heniy. II. — 1 Sjjenca 
 Eq. Jur. 107. 
 
 ^ Austin also attacks judge-made law as an illegitimate statute, us 
 vague, hasty, incoherent, €xpostfacto,i\ow\ievQ authentically I'ccorded. 
 and as tending to render the co-existent statute law bulky ami 
 unsystematic. — 2 Aust. Jur. G71.
 
 CH. n.] JUDGE-MADE LAW. 14.1 
 
 this is, that while a legislature, or, what is] the same tiling, 
 while the common law, speaks in general language, and 
 frames its rules in wide and sweeping phraseology, there 
 nmst be some exponent, who is to decide, whether and how 
 far ]3articular circumstances and occasions are to be 
 governed by, and come within the scope of, those general 
 rules. If in the course of this decision the exponent or 
 judge frames to himself subordinate and secondary rules, 
 this is to be regarded merely as the machinery by whicli 
 the statute or common law can alone be applied to the 
 affairs of ordinary life, and is therefore as much entitled 
 to recognition, as if the legislature itself spoke • by the 
 mouth of the judge in each particular adjudication. Again, 
 it is objected to judiciary law, that it is arbitrary and un- 
 certain. This, however, resolves itself practically into a 
 question as to the capacity of the judge, for nothing can be 
 more clearly verified by experience tlian this, that though 
 judges of equal ability and experience often arrive at 
 different conclusions when reasoning from the same pre- 
 misses, yet the opinion of tlie majority is usually that 
 which best stands the test of subsequent inquiry, being 
 the soundest view attainable in the circumstances. And 
 i-ertainly there is nothing which can be called arbitrary 
 in that which is the average opinion, for it is in other words 
 cmly a synonym for the opinion at which the greatest number 
 of wise and capable men educated for the business, and 
 who apply their minds to the same subject, would also 
 arrive. Solon, it is true, is said to have made his laws 
 jiurposely vague and obscure, that the judges might have 
 a larger discretion ; ^ and Lycurgus refused to commit his 
 to writing for a like reason.'^ 
 
 Another objection to judiciary law is sometimes advanced, 
 which is this, that judges thereby assume the position of 
 legislators, and yet the community have no check or 
 control over them while making such law. But this is 
 answered by the remark, that the legislature must be taken 
 to have so intended judges to act, for if it wishes to render 
 judiciary law impossible, it has only to issue its laws in a 
 more detailed shape, so that in the vast complexity of 
 human affairs there may always be at hand a rule suffi- 
 ciently precise and definite to meet each particular case. 
 ^ Pint. Solon. * Plut. Lycurgus.
 
 144 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 Until the legislature can afford to do this, and it cannot he 
 done without making statutes too voluminous, judiciary 
 law is inevitable. And though judges are usually appointed 
 by the crown, and not by the people, this circumstance does 
 not affect the nature of the duty which must devolve on 
 all who are appointed to apply general rules to particular 
 circumstances. Whoever appoints the judge, if the latter 
 is able to discharge the duty, there is only one mode by 
 which he can do so, and that is by reasoning, as all 
 capable men must reason, when starting from the same 
 general principles, and inquiring which of several principles 
 is that which solves the particular difficulty.^ The first 
 step of a judge is to strip each case presented for adjudi- 
 cation of all its extraneous and immaterial circumstances. 
 This preliminary step requires great skill and reflection, 
 and when all tliat is accidental and fortuitous in surround- 
 ing circumstances has been eliminated, the result is the 
 abstract rule or principle, or ratio decidendi. If judges 
 did not in the process of stripping each case of these 
 accessories express in articulate propositions, and record 
 for future use the method by which they proceed, but 
 simply enunciated the naked conclusion of their researches, 
 it would only lead to successive judges traversing the 
 same ground over and over, none deriving aid from the 
 labours of his predecessor, but each sailing without chart 
 or compass. Whereas when each explains in a recorded 
 decision the steps of his reasoning, he lightens the labours 
 of the future by erecting finger-posts for travellers, and so 
 assists the pul)lic, who are interested in the result, in feeling 
 their way through future complications in the business of 
 life. Judiciary law is merely the register of the steps and 
 finger-posts used in this process of applying general prin- 
 ciples to particular cases, and so far from being injurious, 
 or unwarranted, or unnecessary, is the only safe and 
 indispensable means of arriving at the end desired in all 
 adjudications, namely, the discovering of the rule wdiich 
 governs each decision. Statutes and common law principles 
 and maxims must necessarily be general and sweeping in 
 their language, and owing to the infirmity of language be 
 
 ' See one of the finest examples of jndfje-mnde law, in the 
 n)at1cr how i"ar a maytcr is Hable for injury to a servant caubed by 
 rieglitjcnce of a iellow-servant, — Font, ch. ii.
 
 CET. 11.] MODE OF JUDICIAL REASONING. 145 
 
 more or less obscure, because no legislature can foresee the 
 innumerable variety of complications in human affairs. 
 It may safely be said, therefore, that judiciary law is a 
 necessary incident of all statutory law and all common 
 law, being nothing else than the development and adapta- 
 tion of tlie rules to the business of life. It furnishes the 
 connecting medium l)etween the abstract and the concrete — 
 Ijetween lirst principles and ultimate results. All citizens 
 are agreed in the general principles ; it is in their applica- 
 tion to the facts that they constantly differ, and the whole 
 art and mystery of judicial power consist in supplying the 
 means of solving those differences. 
 
 Mode of jiidicicd reasoning. — Much needless refinement 
 ]ias often been attempted in tracing tlie mode by which 
 judges and courts reason, and by which in the course of 
 their reasoning they develop what seem to be new rules 
 and new laws which are not directly traceable to the 
 legislature. Some authors, as Hale, explain this, by saying 
 that law is formed by illations on anterior law.^ Others say 
 it is made by consequence or analogy, or that it is built 
 on technical grounds, or that it is made by electing one 
 of two or more competing analogies.- In truth judges 
 reason very much as other inquirers into truth and general 
 principles reason. The two great ultimate principles 
 underlying all the reasoning of courts and iudges are 
 these. First, that there is, and must be, if it can only be 
 discovered, a solution to be found for every case that 
 arises, and that solution nmst be found either in some 
 express rule or by induction from the statutes and decided 
 cases and maxims, which are the only legitimate exponents 
 of all the rules that exist.-^ When the last-mentioned 
 materials exist in a loose and vague form, the process of 
 
 1 Hale, Hist. C. L. cli. iv. 
 
 a Paley, Mor. Phil. ; 2 Aust. Prov. Jur. 660. 
 
 =* Tims Ldiii) "WYxNFord said : "The judgments of the courts ot" 
 Westminster Hall are the only authority that we have for by far the 
 greatest part of the law of England." — Fletcher v L. Sondes., 3 
 Bing. 588. 
 
 Lord Repesdale said a new principle must be established to meet 
 fraud, as human ingenuity will always outstrip any cases which have 
 before occurred. — AVebb v Rorke, 2 Sch. & L. 666. 
 
 Sir J. NiCHOL said the. /ws??om .smp/«?;i maybe proved, not only bv 
 reports of adjudged cases, but by public; notoriety, or may be 
 VOL. I. L
 
 146 ON THE LIBERTY OF THE SUBJECT. [intbo. 
 
 reasoning or the mode of arriving at the rule which is to 
 supply the solution of the case in hand is all tlie more 
 difficult. But a judge arrives at his conclusions by pre- 
 cisely the same process of reasoning as the inquirers into 
 scientific laws employ. The latter take certain phenomena 
 as the basis of their induction, just as judges take certain 
 cases, statutes, and maxims in order to discover the higher 
 and more general law which is to reconcile and account 
 for these apparently discordant results or phenomena. 
 The chief difference between judges and scientific explorers 
 is this, that while the laws of nature which science seeks 
 to discover are fixed and immutable, those which the 
 judge explores are only such as exist or are fixed at the 
 time of his inquiry, it being always understood, that 
 if these are found to be not in harmony with the 
 wants of society, there is a legislature at hand to alter 
 them, and make them more conformaljle to higher views 
 of human affairs.^ But so far as the judge is concerned, 
 lie has nothing to do with what the law ought to be ; he 
 confines himself only to what the law is at the time of 
 his adjudication. And hence judges and philosophers are 
 both engaged in searching for laws which they know and 
 believe must exist in point of fact, however difficult to 
 discover ; and the mode of reasoning by which they reach 
 their respective conclusions, whether called the balancing 
 of competing analogies, or the interpretation of written 
 language, or the development of first principles, is precisely 
 the sam3. No court could ever be heard to say that there 
 w^a? no law on the subject of tlie case submitted for 
 adjudication, just as a scientific explorer would never 
 dream of saying that there was no law which could 
 account for a particular phenomenon. The judge can never 
 be baffled in his search, and is bound to find a law some- 
 
 deducible from jirinciples and analog-y, or be shown by legislative 
 r.'coj^nitions. — Wilson v Macmatli, 3 B. & Aid, 245, n. 
 
 ' bur law does not allow a judge to sujiply a casus omissus in an 
 act of parliament, nor to extend the operation of tlie statute beyond 
 its plain meaning. But in I'Vanee, at least in civil cases, a judge who 
 refuses to decide a case under pretext of the silence, the obscurity, 
 or tlie insufficiency of the law, maj' be prosecuted for the denial of 
 justice. — Cod. Civ. tit. prel. art. iv. And S.wigny tliiuks tliis must 
 i)e a rule inseparable from judicial functions. — 1 Savigni/, Droit Horn. 
 203 (ed. 1840).
 
 CH. II.] LEGAL FICTIONS. 147 
 
 Avhere ; whereas tlie man of science may admit that all 
 liis ex])loratioiis have as yet led to uo discovery.^ 
 
 Lcrjal fidlviis. — Here also may be noticed a ])cculiarity 
 of the law which has often excited the ridicule of 
 Ijystanders, namely, the practice of using fictions in the 
 practical administration of its rules. The precise function 
 and necessity of legal fictions are by no means clearly 
 marked, and yet they have occupied a prominent place in 
 its history, and have supplied constant materials for the 
 satirists. Ijentham has said that a fiction in law is a 
 wilful falsehood, having for its object the stealing legisla- 
 tive ])ower by and for hands wliicli could not or durst not 
 oi)enly claim it, and but for the delusion thus produced could 
 not exercise it.^ He also described it as a wilful falsehood 
 uttered by a court for the purpose of giving to injustice 
 the colour of justice.^ Coke, on the other hand, said, 
 fictions in law will never do wrong ; they are never made 
 but for necessity, and in avoidance of a mischief, and they 
 are never strained to the prejudice of a third person wdio 
 is not a party or privy.* The fiction by wiiich a common 
 lecovery enabled a tenant in tail to cut off an entail and 
 convert an estate tail into a fee simple, enabled the courts 
 to repeal tlie statute de donis.^ Ultimately the great prin- 
 ciple worked out by the judges under Edward IV. was 
 embodied in a statute of William IV.^ The fiction in 
 aetions of ejectment which introduced the names of John 
 Doe and Kicbard Roe as a machinery for calling into 
 court the real parties interested in a disputed possession 
 and ownership of land, was invented in the reign of 
 Edward III.; and gradually was moulded till it assumed 
 the more rational and direct form of process confirmed 
 }>y a recent statute.^ 
 
 The fictions by which jurisdiction of courts Avas extended 
 cannot be justified except by the remark, that in semi- 
 
 1 Our courts liave never dared to emulate the feat of the Court of 
 Areopagus, wliicli. wlien jnizzled to find a Law applical)le to a ease, 
 got out of the (liffifulty by postponing the furtlier hearing, and 
 directing the parties to come iij) to the court for judgment that day 
 one hundred vears hence. — Anl. Gell. b. xii. cli. vii. 
 
 * 1 Benth. Works, 243. 3 5 Bcnth. Works, 13. 
 
 • ' 2 Kep. 2'Jb, 30a. * Burton, Comp. 231. 
 
 « 3 & 4, Will. IV. c. 74 §2. " 15 & 16 Vic. c. 70, Sched A 
 
 L 2
 
 148 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 barbarous times all modes of extending relief are honour- 
 able. But as no one now defends fictions as distinct from 
 axioms and postulates in argument, it is unnecessary to 
 dispute the supremacy of Bentham in this field of 
 criticism. 
 
 Adherence of courts to 'p'^G^dcnts. — Not only have judge- 
 made law and legal fictions been used as handles for re- 
 proach to lawyers, but their blind adherence to precedents 
 lias also kindled the ridicule and scorn of their detractors.^ 
 In order to appreciate the displeasure provoked by a habit 
 stigmatised as so bigoted and suj)erstitious, it is necessary 
 to consider what is a precedent in the eye of the law. 
 
 A precedent has two meanings, which are however closely 
 connected. First it means the deliberate adjudication on 
 some prior occasion of a matter properly within the juris- 
 diction of the court, and announced with or witliout reasons, 
 good or bad, given at the time. Secondly it means a form 
 of practice which, with or without reason, has been in use 
 for a great length of time, and which the court and its 
 officers treat as part of the law not to be departed from or 
 altered without the intervention of the legislature. As 
 regards the authority of adjudged cases, it is sometimes 
 asked with wonder and curiosity, why, if a court in adju- 
 dicating on a dispute discover that on some prior occasion 
 —it might be liundreds of years before — another court had 
 decided a similar point, or what is considered by it to be 
 substantially the same point, will at once suspend all 
 further reflection on the subject, will refuse to think about 
 justice, equity,, or good sense, and will blindly adopt the 
 same concUision as its predecessor. And this though one 
 of the litigants may have shown unanswerable grounds for 
 believing that such former decision was wrong, i.e. that the 
 reasons avowed or conjectured as its basis were ill founded. 
 Though the judges who formerly decided the same point 
 may have been weak, or hasty, or capricious — though tlieir 
 judgment may have been warped by sinister intiuences, 
 
 1 Bkntham said precedents were ;i vowed snlistitutes for reason, and 
 the reiiuKs oi" the predominance of tlie sinister ink-rests of tlie rnliii^' 
 few.— 10 Benth. WorLs, oil. 
 
 HoBBKS ridicules lawyers' slavery to precedents. — li Jlohbain 
 Works, 'd\. 
 
 Swift does the same in "Gulliver's Travels." 
 
 I
 
 en. 11.] ADHERENCE TO PRECEDENTS. 149 
 
 the growth of a timid or time-serving age — their reasons 
 may have been puerile — may be plainly opposed to the 
 policy, the tendencies, the improved standard of morality, 
 justice, or good sense of the present day — yet in spite of all 
 such criticism the court will stand by the precedent and 
 refuse to think tv/ice on the subject. All this it is sug- 
 gested is so imlike the conduct of other inquirers after 
 truth (for justice here is truth), that strangers profess to 
 be at a loss to reconcile it with the dignity and single- 
 mi ndedness becoming; the votaries of an illustrious science. 
 Imputations like these cannot be answered effectually 
 without pointing out one or two leading principles on which 
 the action and procedure of all courts of justice are neces- 
 sarily based. The province of a court, it must be recollected, 
 is not to legislate but to adjudicate — not to make laws 
 square with one's 1 tetter judgment, but only to find out and 
 declare what are the laws, good or bad, which exist at the 
 time of the dispute. And as Lord Camden pointed out, a 
 judge is sworn to determine, not according to his own 
 private judgment, but according to the known laws of the 
 land.^ Whatever complexion a legal adjudication may bear 
 to third parties, it is, witliin the interior of the court, only a 
 search for a historical fact.^ What judges try to seek out 
 
 J 10 St. Tr. 1071. 
 
 ■'' " An adherence to fixed rules and a jealousy of judicial discretion 
 have in no countrj'^, I believe, been carried to such length as in 
 Eng-land. Hence precedents of adjudged cases, becoming authorities 
 for the future, have been constantly noted, and form, indeed, almost 
 the sole ground of argument in questions of mere law." — 2 Hallam, 
 Mid. Ages, 341, 
 
 Adam S.\nTH says : " In doubtful cases courts, from their anxiety 
 to avoid blame, naturally- endeavour to shelter themselves under the 
 cxami)le or precedent of former judges. This attention to practice 
 and precedent necessarily formed the Roman law into that regular 
 and orderly system in which it has been delivered down to us ; and 
 the hke attention has had the like effects upon the laws of every 
 other country where such attention has taken place." — Smith's Wealth 
 of Nations, b. v. ch. i. 
 
 " Judges ought to remember that their office is jus dicere, and not^ws 
 dare ; to interpret law, and not to make law or give law. Else will 
 it be like the authority claimed by the Church of Rome, which, under 
 pretext of exposition of Scripture, doth not stick to add and alter : 
 and to pronounce that which they do not find, and, by show of 
 antiquity, to introduce novelty."— 5ac. Ess. 5G. 
 
 " Can the twelve judges extrajudicially make a thing law to bind the
 
 150 ON THE LIBERTY OF THE SUBJECT. [ini'bo. 
 
 is the existing rule, and this is sought by examining adjudged 
 cases published, or at least recorded, — by collating the 
 opinions of ancient or approved text-writers and commen- 
 tators, if no better secondary evidence can be found — by rea- 
 soning from admitted rules applicable to general cases, and 
 pursuing these into the special circumstances, according to 
 ordinary methods counnon to all human inquirers. Another 
 principle is, that the court considers itself bound to find 
 a law somewhere for each case that arises, and assumes 
 with confidence that the legislature or common law has 
 provided some rule, if only it can be found — not indeed 
 that the rule may be perfect, but good enough to be acted 
 on till a better be found. This assumption may seem to 
 ascribe an attribute of omniscience to some legislature 
 which it may be far from deserving ; but it means little 
 more than this, that it does not lie in the mouth of any 
 judge to say he is wiser than the legislature. It means 
 only that if he will take the trouble to inquire he can 
 always satisfy himself either that there is oris not a specific 
 provision applicable, for in either of these events a decision 
 for the purpose of the day can be found, which will dispose 
 of the dispute more or less satisfactorily. But if a judge 
 must act so as not to be wiser than the legislature, the 
 same temper will lead him to give credit to his predecessors, 
 that they, having the same and perhaps better materials, 
 had faithfully acquainted themselves with the appropriate 
 rule of law existing in their time. If any one judge were 
 to set himself up above another, especially above one in 
 whose favour the natural prejudices of men associate 
 veneration with age, he would be in effect assuming the 
 function of legislation rather than of adjudication, he would 
 beunsettlinG: instead of strengthenino' — and he must look to 
 be himself displaced and unsettled in his turn by his 
 successor.^ 
 
 kingdom by a declaration that such is tlieir opinion ? I say no. It 
 is a matter of impeachment for any judge to aflirm it. There mnst 
 be an antecedent principle or authority, from whence tliis opinion 
 may be fairly collected ; otherwise the opinion is null, and nothing 
 but ignorance can excuse the judge that subscribed it," — Per Pratt, 
 C. J.,Entick v Carrington, I'J St. i'r. 1071. 
 
 ' Julian, in the Pandects, says that a reason cannot be given for 
 all that our ancestors have established. And Caius says he wonders, 
 why some laws should exist. — Lib. ix.,J/'. De Offic.
 
 CH. II.] ADHERENCE TO PKECEDENTS. lal 
 
 Tlie iniscliief of disregarding precedents is thus obvious. 
 The moment a court of competent jurisdiction declares the 
 law, and its decision is not made matter of appeal, it be- 
 comes known and acted upon and absorbed into the stream 
 of business. Men's rights are adjusted accordingly ; — 
 people live and die in the faith that their property and rights 
 are fixed as far as human affairs will permit. But if the 
 deliberate judgment of to-day is to be upset to-morrow, 
 because one judge thinks himself more learned, wise, and 
 clear-sighted than his predecessor, no man could sleep in 
 
 Aristotle said no one sliould be ■wiser thcaii the laws. — Ai-ist. Rhet. 
 i. 15, 12. " It is of less importance that the law should be abstractly 
 right than that it should be constant and invariable." — Lozon v 
 Pryce, 4 My. & Cr., 617. It was a favotnite maxim of Lord Maccles- 
 field that it was of little consequence how a point is determined at 
 first, provided it is afterwards adhered to. — 1 P. Wins., 452, 549 ; 
 2 P. Wms. 2, 213. 
 
 Lord Cowfer, before him, had also said the same thing. — Brown 
 V Barkham, 1 Str. 30. And Lord Kixg followed them (2 jP, Wmf. 
 613), and even tried to pass an act of Parliament to settle some moot 
 point of old standing. — 1 Str. 56'J. 
 
 Lc>RD M.iNbFlELD said " the laws of England would be a strange 
 science indeed, if it were decided on precedents only. Precedents 
 serve to illustrate principles and give them a fixed certainty. But 
 the law of England, which is exclusive of positive law enacted by 
 statute, depends upon principles ; and these principles run through all 
 the cases, according as the particular circumstances of each case have 
 been found to fall within one or other of them." — Jones?; Randall, 
 Cowp. 39. In R. v Wilkes, 19 St. Tr. 111(3, the same judge said that 
 an authority, though begun without law, reason, or common sense, 
 must be followed. And Parke, J., spoke of finding out the law for 
 every case in this manner. " We have no right to consider a new case, 
 because it is new, as one for which the law has not provided at all, 
 and because it has not yet been decided to decide it for ourselves, 
 according to our own judgment of Avhat is just and expedient. Our 
 connnon law system consists in applying to new combinations of 
 circumstances those rules of law, which we derive fiom legal prin- 
 ciples and judicial precedents ; and for the sake of attaining 
 uniformity, consistency, and certainty, we must apply those rules, 
 where they are not plainly umeasonable and inconvenient, to all 
 cases that arise : and we are not at liberty to reject tlieni, and to 
 abandon all analogy to them in those to which they have not yet 
 been judicially applied, because we think that tlie rules are not as 
 convenient and reasonable as we ourselves could have devised. It 
 appears to me to be of great importance to keep this principle of 
 decision steadily in view, not merely for the determination of the 
 particular case, but for the interests of the law as a science." — Mire- 
 house V Rennell, 8 Bing. 515 ; 1 CI. & F. 546.
 
 152 ON THE LIBERTY OF THE SUBJECT. [ixtro. 
 
 security. The public inioht awake and find themselves 
 martyrs to the pretensions of one, whose superiority of 
 wisdom they could not be expected to admit, and might 
 successfully dispute. 
 
 Where precedents arc not deemed binding. — Hence it is, 
 that as between courts of co-ordinate authority and juris- 
 diction the decision of one will be acted upon by another 
 without criticising the reasons. The proper mode of cor- 
 recting these is by appeal to a higher court, and if that is 
 neglected, or if the court of appeal confirm the decision, 
 the matter is taken to be settled, and as nearly fixed and 
 irrevocable as anything human can be. The reluctance to go 
 behind such a settlement and reopen the controversy grows 
 with time, and assumes too often that mechanical copying 
 of what has been once held for right, which at first sight is 
 so incomprehensible to strangers. And yet though it 
 must 1)6 admitted, that the reproach so often cast upon the 
 legal profession of blind adherence to precedent rests upon 
 no sound foundation, and proceeds from mere want of 
 thought, there were always a few exceptions and qualifica- 
 tions even to that general rule which tended to obviate some 
 of its grosser inconveniences. Until the Judicature Act put 
 all the superior courts on one level, if as between two courts 
 of co-ordinate jurisdiction there had been a recent decision 
 by one court which another could not conscientiously 
 assent to, a practice had crept in for each court to follow its 
 own independent judgment, more especially if there was no 
 means of questioning by an appeal the prior decision. More- 
 over, if the point was one rather of discretion and practice 
 than of principle, one court felt itself at liberty to disregard 
 its predecessor's conclusion when exercising the same 
 latitude. And it occasionally happened that a court was 
 so strongly persuaded of the injustice, inexpediency, and 
 shortsightedness of a long-established rule as to overrule 
 and reverse it ; but this was only done when no hardship 
 would thereby be created to any interest, and the change of 
 practice would not operate unjustly. The extent to which 
 precedents should liind a court is indeed subject to so many 
 nice qualifications arising out of the subject-matter, the 
 time, and the occasion, that it is scarcely possible to define 
 it except by saying that pritiia facie it is the duty of all 
 courts to follow a precedent unless there is some over-
 
 cii. n.] ADHERENCE TO PRECEDENTS. 153 
 
 whelming reason against it ; and tliis habit is all the more 
 salutary when there is a legislature at hand easily accessible 
 and ready to redress all kinds of injustice, whenever such 
 a course becomes by change of circuinstances or otherwise 
 likely to work oppression. By this discharge of its duty 
 the affected attributes of omniscience and infallibility, 
 sometimes ironically imputed to the law, cease to keep 
 alive for any length of time any flagrant injustice or 
 obsolete dogma.^ 
 
 Adherence to precedents assumes means of hnowledge of 
 the laiv. — While, therefore, adherence to precedents is not 
 only justifiable in the courts, but salutarj^ to the public, 
 much of this justification and safety depends on the extent 
 to which the precedent had become known and acted 
 upon. If the existence of the precedent had been con- 
 cealed and inaccessible to the public, or, what is the same 
 thing, to the advisers of the public, the reason of blindly 
 following it loses most of its force and of its merit. 
 There is, and can be, no abstract merit in following any 
 precedent as a precedent ; it is on the assumption that the 
 precedent had been acted upon, that men's conduct had 
 been regulated by it, and men's titles reposed upon it, 
 that all its virtue depended. But when the precedent 
 lay hid in the forgotten files of the court, and the know- 
 ledge of it had never been diffused among the public or 
 
 ^ Bacon says we sliould avoid such isreccdents as smack of the 
 times. 
 
 Vaughan, C. J., in his reports, says that " in cases which depend on 
 fuiidamenlal princijiles, from whicl) demonstrations may be drawn, 
 millions of precedents are to no purpose." — Re Wales^ Vaugh. 419. 
 
 Lord Mansfield, C. J., said " when an error is established and lias 
 taken root, upon which anj' rule of property depends, it ought to be 
 adiier-ed to by the judges, until the legislature thinks proper to alter 
 it, lest the new determination should have a retrospect and shake 
 many questions already settled ; but the reforming erroneous points 
 of practice could have no such bad consequences, and therefore 
 might be altered at pleasure when found to be absurd and incon- 
 venient."— Robinson V Bland, 1 W. Bl. 234. 
 
 Blackstone says precedents nnist be followed, unless contradictory 
 to reason or the divine law. — 1 Bl. Com. GO. 
 
 Ellenborough, C. J., said: "God forbid that when conscience 
 ]ioiiits one way, 1 should follow precedent the other." — 23 Pari. 
 Dch. 1084. 
 
 De Thou was in the habit of saying that precedents were good 
 only for " the individual plaintifE or defendant," — 1 Bac. Works, 808 n.
 
 154 ON THE LIBERTY OF THE SUBJECT. [intbo. 
 
 the advisers of the public, then little can be urged in its 
 favour, and it must be left to be dealt with by the ridicule 
 of cultivated minds, who owe no allegiance to the law and 
 its methods. It would be better in that view that the 
 judges and courts should at once invent and decide for 
 the occasion, and follow their untutored reason. If to the 
 public all is guesswork — if the legislature or the government 
 take no pains to diffuse some knowledge of the law, or to 
 see that some kuowledce of it reaches the oublic — it can be 
 of very little consequence to the latter whether in searching 
 for a conclusion the courts legislate or expound. The 
 courts may just as well act upon reasons that will be 
 acceptable to the present generation as to the past. The 
 defence of precedents is thus bound up with the considera- 
 tion how far the government acquits itself of the duty of 
 spreading a knowledge of the laws among the people 
 whom those laws solely concern, and this more properly 
 belongs to another and later head, namely, that of codifi- 
 cation. 
 
 Fres2tmption that every one Jcnoivs the law. — It is one of 
 the radical conditions underlying the existence and admin- 
 istration of all laws, that every citizen is presumed to 
 know enough of the law so as not to set up his ignorance 
 as any excuse for his violation of its rules. The maxim 
 is ifjnorantia juris ncminem excusat. The meaning of this 
 maxim has often been hastily assumed to be, that every 
 person is presumed affirmatively to know what the law is on 
 any particular subject that may arise; and hence it is often 
 explained to be a somewhat harsh assumption, if not a 
 palpable historical fiction, inasmuch as every one's daily ex- 
 perience proves that few persons know the whole of the law, 
 or are ever likely to do so ; and that beyond those few, very 
 few indeed know with any reasonable certainty more than 
 a part of the entire law. Yet the law must be administerr'd 
 on the principle that every one must be taken conclusively 
 to know it, without proof that he does know it.^ 
 
 It has sometimes been put forward as a reason in defence 
 of this maxim, which to laymen seems somewhat in need 
 of justification, that all are presumed to know the law, 
 because they were present through their representatives in 
 parliament when such law was passed. Such a reason, 
 1 Per Tindal, C. J., MacNauglitou's Case, 10 CI. & F, 2fO.
 
 CH. II.] ALL PRESUMED TO KNOW THE LAW. 155 
 
 however, could only apply to a small portion of the law, 
 for in any one generation it is but a small portion of the 
 law that is declared by the legislature. And, apart from 
 tliis, the mere fact of the representatives passing a law does 
 not necessarily imply any knowledge in the constituents 
 of the details of such law ; it can only excuse those who 
 passed it and prevent the principals from complaining of 
 tlie acts of their agents.^ 
 
 Reason of this maxim. — The real meaning of the maxim 
 is not that every person is presumed to know the law, but 
 merely that, in any case of alleged violation of the law, no 
 person shall be heard to set up the excuse, that he was 
 ignorant that any conduct of his was in violation of the 
 law. And this maxim so understood is essential to the 
 due administration of all laws. It is founded on necessity, 
 and like some of the elementary truths of mathematical 
 science, must l)e assumed, not because of any positive 
 reason which can be rendered, but rather because of the 
 negative reason, namely, that there is no reason why it 
 should not be so. 
 
 If it were once allowed in answer to any complaint of 
 violation of the law to set up the defence of ignorance, 
 then there must be gradations of ignorance and grada- 
 tions of default, and a preliminary inquiry in each 
 case as to whether such ignorance was real or assumed, 
 culpable or innocent. One would be entitled to urge that 
 he had never received any education at all ; another, 
 that he was about to study the law, but had not yet 
 advanced sufficiently; a third, that he had made an effort 
 to learn, but could find no sufficient teachers ; a fourth, 
 
 ^ It was said so far back as tlie time of Edward L, that the reason 
 why no one should excuse himself for ignorance of the law was, 
 because every person was represented in parliament.— Ffar-iJoo/:, 
 39 Edward L, T. Pasch. 
 
 HoBBEs insinuated that it was not apparent why every man sliould 
 be bound to buy the Book of Statutes, or search at the Tower, or 
 understand the language in which they were written.^ — Hohbess Dial. 
 p. 51)9 (ed. 1750). 
 
 Hooker said it was against equity, that one should sufl'or from a 
 law which he had never by himself or others mediately or imme- 
 diately agreed to. — Eccl. Pol. But Hallam said this doctrine in its 
 literal sense is incompatible with the existence of society. — lllallaiii, 
 Const. H. 222.
 
 156 ON THE LIBERTY OF THE SUBJECT. [intrO. 
 
 that he had to get his living, or had no sufficient means, 
 and so had no leisure ; a fifth, that he had applied to the 
 wisest person within liis reach, and had been misled by the 
 information he received ; and a sixth, that he had made 
 careftil inquiry, and found the higliest authorities equally 
 wise and weiglity on both sides, and was unable to decide 
 which should be his guide. It might be asked, if such 
 inquiries were permitted, what materials exist to enable 
 any court satisfactorily to dispose of them. The interior 
 of a man's mind is beyond the reach of inquiry. To 
 endeavour to discover the secret springs of thought — the 
 degree of reflection given to any one subject — the elements 
 of self-education, or the impulse given to the mind by the 
 common knowledge provided by the schools — with what 
 possible certainty can any third party attempt to solve so 
 inscrutable a problem ? Hence the courts Avisely abandon 
 the impossible task, and treat all alike as incompetent to 
 set up any such defence, leaving each to find out for him- 
 self and in his own way whatever he wants, and to take 
 the risk of his want of knowledge as it may turn out.^ 
 
 But though no one is allowed in any legal proceeding 
 to set up his own ignorance of law as an excuse, it is very 
 different, where an error of fact is involved, and lies at the 
 root of the supposed violation of law. An error of fact 
 may entirely vitiate an agreement between two parties and 
 prevent that ^\■hich was supposed to be an agreement from 
 having any binding effect. The effect of a mistake of fact 
 is indeed difHcult to be stated, apart from the various situa- 
 tions in which one's rights and wrongs arise. It is enough 
 here to say, that while a mere mistake of law generally 
 forms no ingredient in the remedy of civil courts, and often 
 small even in criminal courts, yet a mistake of fact may be 
 so mixed up with the foundation and administration of 
 
 1 This theory, however, was departed from in a case where a man, 
 in a sliip on the coast of Africa, did an act, on June 27, for which lie 
 could not have been punished except under an Act of Parliament 
 which had passed on the previous May 10, but the knowledge of 
 which statute could not have reached him at that remote j^Iace. The 
 judges concurred, that it would he unjust to punish him, though 
 technically he was guilty, and recommended a pardon to be obtained. 
 —Iiaileii\H Case, R. & Ry. 1. An exception to the rule, that ignorance 
 of the law is no excuse, exists in the case of a judge who, mistaking 
 the law, indicts injustice on another.— R. r Pictoii, 30 St. Tr. 831, 914.
 
 cir. II,] LAW AND EQUITY. 157 
 
 rights and remedies, tliat it may bean important ingredient, 
 as will Le found illustrated at length in various occasions 
 hereafter to be mentioned. 
 
 Listinction of law and equity. — Some notice is also due 
 in this place to a notable distinction, which had long pre- 
 vailed in English law between courts of equity and courts 
 of common law. Tliough it is usually of small consequence 
 to suitors by what name a court is called, provided the 
 thing it dispenses is justice, or near it, yet the distinction 
 referred to had gradually risen from a mere technicality of 
 procedure to such prominence as not only to derange the 
 general machinery, but to warp and distort the public 
 mind. The public were sensible only of the mischief, and 
 unwilling to discern any benefit from seeing the law ad- 
 ministered by two broadly-marked divisions of courts, 
 always having imperfect sympathies, and sometimes in 
 open conflict with each other — one court following rules 
 which the other ignored, and which it was impotent to 
 comprehend, to accept, or to act upon — one court givin*^ a 
 judgment, and the otlier court next day pulling it to pieces 
 — one court putting a man into possession, and the other 
 court turning him out of possession — one court dismissing 
 a suitor as blameless, and the other court seizino- him ami 
 thrusting him into prison as a punishment for his contempt. 
 
 The mental confusion created among bystanders by such 
 proceedings was inevitable. First it taught the public to 
 believe, that law was not equity, and equity was not law — 
 that what was just in one court was unjust in the other — 
 that what was told them by one court was only half the 
 truth — that they must invoke the powers of a second court, 
 before they could hope to know the whole of their rights 
 and wrongs — not to speak of the evil effect produced on 
 the suitors by the reticence and taciturnity of each court as 
 to the remedies open to them in the other. Secondly, tlie 
 expense and delay to the public were thereby doubled, 
 because the details of both procedures were too voluminous 
 to be mastered by one set of practitioners, and as they 
 could not undertake to manage both, they confined them- 
 selves to one only. Double costs and indefinite delay thus 
 resulted to litigants. So many were the evils and so few 
 the advantages, that the current of public opinion sapped 
 anrl mined this wall of separation till it fell. For centuries
 
 ir.8 ON THE LIBERTY OF THE SUBJECT. [Tntro. 
 
 the profession failed to see itself as others saw it. Yet the 
 dominion of this leading;' subdivision was so durable and so 
 extensive, as to leave permanently stamped on the profes- 
 sional mind distinctions, contrasts, and phrases which it must 
 prove tedious to unlearn. It was pernicious to create and per- 
 petuate the belief, that law did not include equity, and that 
 equity was somethin^^ outside and superior to law. If both 
 had limits, and both had to be administered by courts 
 having, if not concurrent, at least coequal authority and 
 power, the best policy was not to keep them so wide apart. 
 
 But though the administration of the law by two separate 
 courts which meted out justice with an air of rivalry ratlier 
 than of co-operation was attended with mischiefs, there was 
 to be set off against this an incidental advantage on the 
 other side. In the great majority of cases the result was 
 nothing else than a subdivision of labour, though operating 
 in the most vexatious way, and hence the tendency was 
 to make the judges and practitioners more skilful in the 
 particular work with which they were familiar. 
 
 Most of the evils arising from this subdivision of courts 
 into courts of equity and common law were put an end to 
 in 1875, and the liistor}^ of the origin of the Court of 
 Chancery as a court of equity is now a matter rather for 
 antiquarians than for lawyers. England was said to be the 
 only civilised country where the sej^aration of equity from 
 law was kept up, for the Court of Session in Scotland, and 
 the courts of other European countries allowed of no such 
 distinction. But Bacon and a long line of illustrious clian- 
 cellors thought the distinction a blessins; rather than an 
 evil. The history of the Court of Chancery goes back for 
 many centuries. Whenever courts of law, as courts in all 
 countries are apt to do, adliered too closely to the letter of 
 their rules, and a violation of the sense of justice resulted, 
 the dissatisfied party, so far back as the time of King Edgar, 
 app<^aled to the king.^ The king referred the matter to his 
 chief officer, and the Lord Chancellor coming to hold that 
 po.-;ition, was able to su])i)ly defects from time to time, until 
 liis course of action gradually settled into a system, and 
 became known and resorted to as peculiarly applicable to 
 certain classes of rights. The select council in the time of 
 Henry I. took cognisance of hardships which the ordinary 
 
 Leg. Edg. di ii.
 
 rn. II.] LAW AND EQUITY. 150 
 
 judges could not relieve.^ And Edward I. remitted peti- 
 tions which prayed extraordinar}' redress to the Lord Chan- 
 cellor and ]\Iaster of the Eolls, directing them to give such 
 remedy as appeared consonant to honesty.^ The Court of 
 Chancery was in working order in the reign of Edward II.^ 
 In the time of Edward III. it was a court of ordinary 
 jurisdiction, directed by his writ to administer matters in 
 the grace of the crown.* And in that reign the Court of 
 Chancery, like the Court of King's Bench, ceased to follow 
 the king, and thus acquired stability and strength.^ 
 
 The introduction of the practice of creatino- uses of 
 land or trusts m the tnne of Edward III. gave an ad- 
 ditional imj.iulse to the business of this court, and not- 
 withstanding the opposition of Lord Coke to the practice 
 of courts of equity nullifying judgments of courts of law 
 (and which was one of the articles of impeachment 
 against Wolsey), the jurisdiction of the Court of Equity 
 was, after due examination, confirmed and consolidated 
 under Lords EUesmere and Bacon. The future history 
 of the jurisdiction was notliing but a natural development, 
 the courts of law falling back by degrees on the old lines, 
 and the courts of equity feeling their way, whenever 
 there was an opening to administer relief as soon as the 
 original courts under their construction of accepted rules 
 failed to provide any. It was found that the ecclesiastical 
 courts could not deal effectually with all the suits and 
 actions arising against the executors and administrators of 
 a deceased person, and that there was need of a machinery 
 for consolidating all the litigation arising out of the con- 
 tracts and undertakings which a dead man left imperfect, 
 and so a court of equity allowed an administration suit 
 by whicli the extrication of all liabilities between the 
 dead and the living could be undertaken under its own 
 immediate superintendence. From this class of circum- 
 stances alone a fruitful business sprang up. The eccle- 
 siastical courts, moreover, not content with jurisdiction 
 over wills and testaments, and marriage, for whicli tliey 
 had, according to medi<tval views, a colourable ground of 
 interference, once entertained suits for debts and breaches 
 
 J Hardy's Close Eolls, p. xxv. " Disc, on M. R., p. 86. 
 
 » 1 Camp. L. Ch. 206. " Hardy's Close Rolls, xxviii.: Writ, 22 
 
 Ed. III. '^ Parkes' C. of Ch. 34.
 
 160 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 of contract, claiming to administer relief p'O Icesione fidei. 
 Blackstone says tr.ese courts so acted from the time of 
 Stephen till late in the fifteenth century.^ 
 
 Equiiahlc jurisdiction as to trusts. — The case of trusts, 
 however, is the most conspicuous instance of the manner 
 in which courts of equity came to supply the deficiencies 
 and correct the pedantries of courts of law. A trust, 
 as will he seen hereai'ter, is only a device for separating 
 the ownership of lands or goods into two parts, whereby 
 the substance or benefit of the property is given to one 
 called the cestui que trust or beneficiary, and the right of 
 management or custody to another, called the trustee. 
 Good reasons must exist for this subdivision of ownership 
 in the circumstances of every civilised community, more 
 especially in connection with the gift and bequest of 
 property after the death of the testator. • Such a practice 
 arose in the Eoman law out of a natural desire of testators 
 to evade the Voconian law, by which a qualified citizen 
 only could be made heir, and thus an only female child 
 might have been left destitute, unless the father could 
 give the property to some one in trust for the benefit 
 of that child. And Augustus recognised the justice and 
 compelled the performance of such a trust. In England 
 also, before the time of Edward I., an owner from similar 
 motives gave even during his lifetime estates to feoffees 
 for uses with a trust or confidence to reconvey them after 
 death to himself or his heirs, thougli the courts of 
 law could not give a remedy if the feoffee omitted to 
 execute his trust.- Tlie clergy had the merit of putting 
 the subject on its right footing, for they required a 
 friendly hand to hold property for their benefit, in order 
 to evade the provision of Magna Charta and later 
 statutes proldbiting gifts to religious houses.^ The laity 
 had equally urgent motives, such as the object of defeat- 
 ing creditors or attainder, or providing for younger 
 children. Any such arrangement as a trust, however, 
 courts of law, with a narrow-mindedness approaching 
 to pedantry, professed not to comprehend. They refused 
 to deal with any one but the feoffee, and treated all 
 representations of these ulterior interests in the back- 
 
 1 3 Bl. Com. 52. - 2 Bl. Com. 271. 
 
 3 iMiiK. ( liarta ; 9 Hen. Ill c. StJ ; Stat, de Uoliy. 7 VA. I.
 
 en. II.] LAW AND EQUITY. Ifil 
 
 gi'ound as a fraud. They selected the manager or trustee 
 as for all purposes their owner in fee, leaving him to 
 do as he liked with his so-called confederates in the 
 collusion. By this course a trustee was deemed absolute 
 owner, and was entitled to appear as such in all the 
 phases of litigiousness before courts of common law, 
 and he was not deemed bound to account before them 
 to the other party in the trust, or acknowledge in any 
 way his existence ; the consequence of which was that 
 trustees went entirely without check or control till the 
 time of Henry V. The courts of equity saw^ their oppor- 
 tunity, and, the chancellor being usually hinioclf an 
 ecclesiastic, borrowed the practice of the ecclesiastical 
 courts M'hich never hesitated a scruple as to the powers 
 they would exercise over the living or the dead, invented 
 the writ of subpcena, by which they summoned the 
 trustee before them, and made him convey the estate or 
 execute the trusts, or take proceedings at common law, 
 according to the situation of affairs.^ This subpoena, 
 though at first deemed a dangerous novelty (said to be 
 the invention of Sir John Waltham, M. E., in the time 
 of Eichard II.), after some fluctuations of treatment, 
 became a settled practice in the time of Edward IV. 
 It was a searching process, requiring the defendant's 
 personal attendance under a penalty of commitment for 
 contempt — thereby in itself forming a marked contrast to 
 the mode of commencing and carrying on actions at 
 common law, where the appearance of parties was not 
 necessary, and indeed they could not be lieard. 
 
 Not only was the case of trusts the most conspicuous 
 occasion for the firm ground taken up by courts of equity, 
 but other miscellaneous matters were also appropriated, 
 such as the relief allowed in cases of fraud and accident: 
 Coke quotes a couplet of Sir Thomas More, that " three 
 things are helped in conscience — fraud, accident, and things 
 of confidence." ^ And when the conscience is once resorted 
 to, no one can fail to see that there must be many liard- 
 ships occurring under the most admired rules of law, 
 which are hateful to the sense of justice, and which any 
 one skilful in applying conscientious thought, and with 
 suitable opportunities, can intervene to meet with great 
 
 1 1 Spence, Eq. Jur. 443. ^ 1 Koll, Abr. 374 ; 2 Swanst, 160, n. 
 
 VOL. I. M
 
 162 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 effect. He may thereby appease the smart of many an 
 unredressed wrong. 
 
 Some vague notions of distinction of laio and equity. — 
 Some writers in accounting for the distinction between 
 law and equity, confounded equity with that rule of con- 
 struction Mdiich in all courts must prevail, of supplying 
 some meaning, which the letter of the law in strictness 
 either omits or indistinctly recognises, and in this sense, 
 as Lord Bacon once argued, there is no law under heaven 
 which is not supplied with equity.^ Plowden so used the 
 word. 2 And it is this sense which equity commonly bears 
 among Greek and Eoman lawyers and public jurists f 
 for they speak of equity as the informing soul of law, 
 and moderating and correcting its rigour. The Roman 
 pra?tor seems to have acted in this spirit.^ And some 
 English authors treat this as at least the characteristic 
 feature of equity.^ There is much looseness indeed in 
 this view, yet all seem to admit that there is a limit 
 even to moderating the written law, wdienever that law is 
 precise and definite enough to be understood, for then no 
 court, even of equity, can interfere further ; and courts of 
 equity as well as courts of law refuse to create a rule 
 which cannot by fair construction be derived out of the 
 general and accepted language of some other admitted 
 rule or statute. And Blackstone corrected, as Lord Eldon 
 also repudiated, the popular notion, that courts of equity 
 were not bound by precedent like courts of law, but 
 may vary like the chancellor's foot, or according to his 
 discretion ; in that respect both courts, as he showed, acted 
 alike.^ 
 
 Origin of court of equity in usuri^ation of legislative 
 'power. — In all courts and in all ages judges show different 
 
 1 Bac. Works, kr-r, Marches. « Plowd. 4G5. 3 Arist. Eth. Nic. 
 1). V. c. 14 ; ruJfen(i. b. v. c. 12, § 21 ; 1 Doniat, Prel. 1, 1, 23 ; Cic. 
 Orat. § 37. ^ \ lleiiiec. El. Pand. 1, 1, 42. ^ i b1. Com. 61 ; 
 3 lb. 419 ; Dial. Law, L c. IG ; Finch, Law, 20. c 3 b1. Com. 
 
 432 ; 2 Swanst. 414. 
 
 It was under this conunon delusion, that Junius denounced Lord 
 Mansfield for trying" to turn a court of connnon law into a court of 
 equitj'-, in order, as was insinuated, that his discretion might be with- 
 out limit. — Juvi.us., Lett. 63. 
 
 BuKKE, on the oilier hand, extolled Lord Mansfield for his liberality. 
 — Rep, U. C, R. V Hastings, vol. xiv. p. 385.
 
 CH. ir.] LAW AND EQUITY. 163 
 
 dispositions as to tlie extent of accommodating the letter 
 of tlie law to the varying subject-matter of the particular 
 case ; for this is part of human nature, and of individual 
 temperament, rather than an incident of any one species of 
 jurisdiction. The rival schools of lawyers in the Augustan 
 age of Rome, the Sabinians and the Proculians, divided 
 the profession from Augustus to Hadrian, one adhering to 
 the letter of the law, and the other to the spirit, till the 
 perpetual edict closed the controversy.^ It is true that in 
 England, instead of this qualifying and liberal element 
 remaining in each court, and accompanying the exercise of 
 each jurisdiction, it came to be separated to some extent, 
 and vested in a distinct court, giving rise at last to a 
 marked line of demarcation, separating co-ordinate and 
 rival courts dealing with the same subject-matter. This 
 has been accounted for by Blackstone with much truth as 
 arising from the accidental circumstance of the chancellors, 
 the great officers of state, and nearest the king's person, being 
 for many ages either ecclesiastics or statesmen, neither of 
 which classes has ever been very scrupulous in the exercise 
 of power ; and they stepped in to fill up obvious defects in 
 the ordinary courts by exercising what would now be 
 deemed and justly stigmatised as legislative power, though 
 in early times this kind of judge-made law was often not 
 only expedient and useful, but in most senses necessary. 
 The proper course was not followed, if indeed it was in 
 earlier times capable of being appreciated, namely, that of 
 leaving the legislature to supply all defects which the 
 courts of law did not, or which the judges thought they 
 could not fairly remedy under their existing powers. The 
 statute of Westminster Second in the time of Edward I., 
 enabled the clerks of chancery to issue writs adapted to 
 the case if such case did not exactly suit the established 
 form; but the judges professed themselves to decide all 
 questions al)Out writs, and did not take pains to improve 
 their opportunity.^ Moreover, when the defects were dis- 
 covered, these ought to have been admitted and confessed 
 on all sides. Instead of this, the distinction and anomaly 
 went on widening and deepening. The encroaching power 
 of chancellors grew with what it fed upon, knowing that 
 
 ^ Gibbon, Eom. Einp. ch. xliv. 
 
 2 13 Ed. I. c. 24 ; 1 Spence, Eq. Jur. 240. 
 
 M 2
 
 164 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 the popular conscience was on its side : and the anomaly 
 has been an unreasonably long time in dying out. Both 
 the common law judges and the equity judges for ages 
 refused to see and confess that what they disputed about 
 was caused by one of them arrogating legislative functions. 
 It was not indeed till comparatively modern times that the 
 proper boundary between the judicial and the legislative 
 powers was clearly seen, acknowledged, and firmly acted 
 upon. The prejudice of ages had led all courts of justice 
 to believe that each particular legislature at some remote 
 and distant antiquity had foreseen and provided for every 
 conceivable species of wrong and injustice, and hence it 
 never occurred to any of them that any fresh intervention 
 of the legislature was necessary : yet they were ready to 
 tell a discontented party that he must go without a remedy. 
 The usurpations therefore of the Court of Chancery were 
 only an illustration of the confusion of ideas pervading the 
 times as to the origin and function of courts of law, and as 
 to the province of the legislature. The usurpations were 
 salutary, though they should have stopped sooner. The 
 legislature should have been invoked at an earlier period. 
 The result is, that in modern times what seems so incom- 
 prehensible to bystanders would have been more intelli- 
 gible, if the distinction between law and equity had been 
 represented as nothing more than this, that the jurisdiction 
 of the courts had become subdivided, each set taking 
 charge of a separate branch of business. How or why the 
 separation arose could never be of much consequence 
 except to lawyers, for there is nothing in which the public 
 take less interest than tlie divisions and apportionment of 
 jurisdictions. And M'hile in reviewing the rise and con- 
 tinuance of the anomaly we are warranted in saying that 
 the courts of law acted more regularly according to modern 
 notions, and the Court of Chancery witli more spirit and 
 propriet}^ according to ancient notions — the one in declin- 
 ing and tlie other in usurping a function which could now 
 only be conferred by the legislature — the long separation of 
 jurisdiction was attended with the solitary advantage that 
 it gave that precision of thought on certain subjects which 
 a suljdivision of labour usually brings about. 
 
 Codification of laws, how far necessary/. — The details of 
 the law having grown unwieldy and incongruous, a natural
 
 cii. II.] CODIFICATION. irj5 
 
 desire has grown up for many generations to have some 
 codification or well- arranged summary of the whole, such 
 as may be known and read of all men. The public being 
 presumed to be bound to obey these laws in their minutest 
 details, and incurring pains and penalties often proportioned 
 to their ignorance — that ignorance being costly, and yet 
 inexcusable — and the very end and object of all law being 
 that it should be intelligible and accessible to inquirers, 
 the question has been asked, and has never yet been 
 answered, How it comes that English subjects liave never 
 been provided with reasonable means of satisfying the 
 most moderate of moderate desires after this branch of 
 useful knowledge ? ^ While the statute law is bulky and 
 incoherent, the same is equally true of the common law, or 
 unwritten law, which exists in no definite written form, but 
 is collected by induction and reflection, as occasion calls, out 
 of the still more bulky decisions or precedents, as well as 
 treatises and digests accumulated during centuries. The 
 common law is now the essence of hundreds of volumes 
 of legal decisions, and in its concentrated form floats like 
 a tradition in the minds of generations of lawyers, 
 rather than is embodied in any one book or set of books. 
 The digests made from time to time are merely collections 
 of the points supposed to be decided by the courts, and 
 expressed in a more or less abstract form for convenience 
 of reference or as aids to the memory. 
 
 As the municipal law consists partly of statutory law 
 and partly of non- statutory law, if a code means a com- 
 plete collection of general rules of law, so far as these can 
 
 1 Montaigne said, " What can be more strange than to see a people 
 obliged to obey and pay a reverence to laws they never heard of, 
 and to be bound in all their affairs, both private and public, as 
 marriages, donationp, Avills, sales, and purcliases, to rules they can- 
 not possibly know, being neither writ nor published in their own 
 language, and of which they have of necessity to purchase both tin- 
 interpretation and the use." — Montaigne^ b. i. ch. 2'1. 
 
 Mo^"^A]GNK also said that in his time they had in France more 
 laws than in all the world besides, and more than would be needed 
 to govern all the worlds of Epicurus. And he thought it would be 
 better to have no laws at all, and to imitate those nations that chose 
 any stranger passing by to sit and decide their disputes. — Monta'ujne, 
 b. iii. ch. 13. And that lawyers' books upon books, interpreting inter- 
 pretationg, were endless and sickening. — lb.
 
 166 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 be expressed in writing, then, in order to construct a code, it 
 will be necessary to methodise the materials of both de- 
 scriptions, each being complementary to the other, and 
 neither being complete in itself. To say that such a work 
 could not be accomplished is to say, that judges and courts 
 decide cases on some secret and inscrutable grounds M^hich 
 are not capable of being expressed in articulate language, 
 and not fit to be heard and read of men. But the increas- 
 ing amplitude of discussion and elaboration of reasons 
 contained in all modern judgments of our courts, alto- 
 gether negative such a conclusion.^ 
 
 What is a reasonahle form of codification. — If it be no 
 excuse for any citizen that he is ignorant of the law, if 
 ignorance is costly to the national exchequer, it seems to 
 follow, that the government of a country ought to take 
 some trouble to facilitate the knowledse of that law and 
 bring it within the reach of all, and in such a shape as to 
 be accessible to any one who devotes moderate industry and 
 intelligence to its study. No citizen can in the course of 
 his avocations, whatever these may be, wholly fail to 
 gather some sound views of the great outlines of the law, 
 for the business of life cannot proceed a step Avitliout 
 regard to those leading principles, and many have some 
 additional glimpses from their services as jurors and 
 witnesses. But over and above what each citizen cannot 
 help knowing, there may reasonably be provided also some 
 facilities for securing greater precision and detail to such 
 knowledge. It cannot indeed be expected, as Montaigne 
 seems to have thought, nor is it desirable, nor, if desirable, is 
 it practicable, to make every man his own lawyer, for the 
 
 1 Lord Hardwicke, in 1761, said that " in the best policied countries 
 iibroad judges did not give reasons of their judgments in public and 
 openly ; but he always looked on this as one great security. Some 
 persons prefer the reputation of their understanding to that of their 
 conscience, and woidd be ashamed to talk nonsense to the world in 
 sujiport oi a jiulguH-nt that they would suffer themselves to give 
 silently."— 16 rurl. llUt. lUll. 
 
 Wlien a statute of Edward 111. ordered pleadings to be in the 
 English tongue, the reason given was that litigants might know 
 what was said for and against them, and that every man of the 
 realm may the better govern liimsulf A\ithont oirending agauist 1h ' 
 law, and the better save and defend his heritage and possessions. — 
 •diS Ed. \n. St. 1, c. 15.
 
 CH. II.] CODIFICATION. 107 
 
 law must of necessity always be enough for a separate 
 profession, engrossing tlie labours of a life. One must be 
 made a lawyer, and is never born a lawyer. As Selden said, 
 unless the science be professionally studied, it will breed 
 nothing but overweening conceits.^ Yet no man can fulfil 
 tlie duties of any of the higher stations in society fitly, with- 
 out a large and tolerably accurate acquaintance with the 
 general principles and even many of the leading details of 
 the law. It must always be rather in the correct application 
 of those principles, than in the knowledge of the principles 
 themselves, that the lawyer will differ -from the layman, 
 as the familiar manipulation of the tools is something 
 distinct from an accurate knowledge of the results obtained 
 by their use. 
 
 What is meant by a codification is nothing else than 
 the methodical arrangement of the whole body of the 
 law, whether statutory or non-statutory, which now lies 
 scattered over many volumes, and has to be excavated 
 piecemeal, with great labour and much risk of error, from 
 the accumulated mass of undigested decisions and practices. 
 Whether a code when completed should have the authority 
 of a statute or not, is a subsidiary question ; but that a code 
 •would render possible a more familiar acquaintance among 
 the public with its details, needs no argument. All that 
 would in a code or a digest be valuable to the public 
 would be the summary it included. A code necessarily 
 imphes a methodical arrangement of matters, and consider- 
 able brevity in the enunciation of leading rules or prin- 
 ciples. It is true that brevity '^ is a virtue not to be sacrificed 
 
 ^ Barr. on Stat.. 
 
 ^ " It is commonly required that the language of the law should be 
 p;u1Jciilarly distinguished by brevity. Certainly brevity may be 
 extremely effective, as is clear from the examples of the Roman 
 decrees and edicts. But there is also a dry, inexpressive brevity 
 adopted by him who does not understand the use of language as 
 an instrument, and whicli remains wholly ineffective. Numerous 
 examples of it are to be found in the laws and records of the middle 
 ages. On the other hand, ditt'useness in law authorities may be very 
 exceptionable, nay, wholly intolerable, as in many of the constitu- 
 tions of Justinian, and in most of the novels of the Theodosian 
 code : but there is also an intelHgent and very eft'ective diffuseness, 
 and this is discernible in many parts of the Pandects." — Savigny, Voc. 
 of Age (tr. by Hayward, 41). 
 
 Bacon said that " certainty is so essential to law, that law can- 
 ;)ot even be just without it. If the law give an uncertain sound,
 
 168 ON TPIE LIBERTY OF THE SUBJECT. [intro. 
 
 to precision ; but so far as it is compatible with precision, 
 then brevity should characterise a code thus far, that where 
 the same distinct meaning can be put in one sentence, it 
 is a waste of time and trial of patience to expand it into 
 two or three. The best method of arrangement is pecu- 
 liarly for the consideration of experienced, methodical, and 
 clear-sighted intellects, gifted with the faculty of clear 
 expression. If the objection to a code be the difficulty of 
 finding several to agTee in any one statement or proposition, 
 the mode of overcoming that difficulty was discovered by 
 Theodosius when he commissioned his code. He directed 
 that where several minds were entjased in the same work, 
 and were in danger of a conflict of opinion, the opinion of 
 Papinian should be that which should prevail.^ This 
 objection, therefore, may be obviated without difficulty by 
 finding a Papinian. 
 
 Usual objections to codification. — It has been urged that 
 codification would effect no alteration of the law, and 
 would in truth amount to nothing more than collecting it 
 into more convenient parcels, and providing the lawyer with 
 better and sharper tools to work with. But if the code 
 would, over and above the latter advantage, provide the 
 general public with a simpler and easier access to its 
 contents, this is so inestimable a boon, and one which 
 every government should favour, that the particular 
 advantage to the profession of the law may be altogether 
 disregarded, or, at least, it need not intercept the benefits 
 enuring to the rest of the community. If the sole object; 
 of codification were to benefit the legal profession, and not 
 the general public, then it might with justice be argued, 
 that the medical and the clerical professions might equally 
 claim at the hands of the state a simpler and easier way 
 of mastering their respective subjects, which are also of the 
 greatest utility. But if the crowning advantage of a code 
 
 wiio shall preparo to obey? It ought therefore to warn before it 
 strikes. It is well said also by Aristotle, that that is the best law 
 wliich leaves least to the diseretion of the judge, and this comes 
 from the certainty of it." — B<w. l)e Aug. b. viii. ; Arht. Tilirt. i. 1. 
 
 OuvKK Cromwell being bent on a reform of the law, ami having 
 set his parliament to make the laws more plain and short, com- 
 plained that they had taken many months to settle the meaning 
 of one word, namely, "incumbrance." — 3 Carlijle, Crom. 274, 357. 
 
 ^ Theod. Code, b. i. tit. 4.
 
 ru. II.] CODIFICATION. 169 
 
 be, as it is intended by its most judicious advocates to be, 
 for the better diffusini:? of a knowledge of law amontj tlie 
 
 o o 
 
 intelligent part of the community, and thereby educating the 
 public mind in such a manner as to avoid illegal acts, and 
 so lessen the public expense and the costly apparatus 
 required to detect and punish them, then this is so clearly 
 a matter of imperial concern, that no government can 
 successfully excuse its neglect or delay. Any immediate 
 expense to the nation caused by labours so arduous, 
 would be, sooner or later, more than compensated by the 
 greater respect and interest displayed towards the laws, 
 and less outlay to the national exchequer in enforcing 
 their observance. 
 
 Complaints of intelligent citizens as to vjanf of a code. — On 
 this subject it is best to listen to the comments of the cloud 
 of witnesses who represent the cultivated intelligence of the 
 country, and of its most active and useful citizens, rather 
 than to listen to the views and opinions of lawyers, who 
 cannot be expected to see themselves and the work they 
 are employed upon as others see them. It is well to 
 hearken to the voice of amazement and scorn that is heard, 
 whenever the confused and undigested mass of English 
 law lies open to popular scrutiny. Filangieri, in 1780, 
 thus apostrophised England on the subject of its laws and 
 their crudity : — " After having instructed, enlightened, and 
 astonished Europe with your inventions, your arts, your 
 productions, and your wonderful discoveries, is it possible 
 your legislation should be so obscure ? Formed out of 
 many barbarous absurdities of your ancestors, of the ex- 
 travagance of the Gothic feudal system, in direct opposition 
 to the principles of your adorable liberty : of usages and 
 customs whose origin is not even known : of new laws, 
 often contradicting old ones : of the decisions of your courts 
 with the effect of laws : of useful establishments united 
 with destructive ones : of evils and their remedies : of 
 numerous sacrifices for your independence, and as many 
 instruments of despotism : it appears to the eyes of the 
 philosopher an immense mass of confusion, out of which 
 it may be difficult to extract a remedy that would remove 
 the defects of your constitution and preserve your liberty." ^ 
 
 ^ Filang. La Sci. d. Legisl. c. 10. 
 
 Hallam — "The vast extent and multiplicity of our laws have
 
 170 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 Yet the question of a code has been so mixed up with 
 its supposed effect on the legal profession^ that the benefit 
 to the public, for whose sole use it should be intended, 
 is often altogether lost sight of. In such a project the 
 
 become a practical evil, which, between the timidity of the legislature 
 on the one hand, and the selfish views of practitioners on the other 
 hand, is likely to reach in no long period an intolerable excess. We 
 accumulate statute upon statute and precedent upon precedent, till 
 no industry can acquire, nor any intellect digest, the mass of learn- 
 ing that grows upon the panting student, and our jurisprudence 
 seems not unhkely to be simplified in the worst and least honourable 
 manner, a tacit agreement of ignorance among its professors. It 
 would be a disgrace to the nineteenth century if England could not 
 find her Tribonian."— 2 Hallam, Mid. Ag. 342. 
 
 In 1793 Robert Hall wrote : "The laws in their present state 
 are so piled into volumes encumbered with precedents and perplexed 
 with intricacies, that they are often rather a snare than a guide, and 
 are a fruitful source of the injustice tliey are intended to prevent. 
 The expense is as formidable as the penalty ; nor is it to any purpose 
 to say, they are the same to the poor as to the rich, while by their 
 delay, expense, and perplexity, they are placed on an eminence 
 which opulence only can ascend." — Apol. Freed, of Press, 102. 
 
 Macaulay — " That we have been far too slow to improve our 
 laws must be admitted. But though in other countries there may 
 have occasionally been more rapid progress, it would not be easy 
 to name any other country in wliich there had been so little retro- 
 gression."^ — 3 Mac. Hist. 84, 
 
 FiLANGiERi said the multiplicity of laws which oppress the courts 
 of Europe and render the study of its jurisprudence as laborious as 
 that of the Chinese language, which it takes twenty years to learn, 
 is due to the practice of ignoring all general principles, and applying 
 to each case of individual hardship as it arises a new law to avert 
 such hardship. — Filang. Hci. of Legist, c. 8. 
 
 J. S. Mill — "The law of England has come to be hke the cos- 
 tume of a full-grown man, who had never put off the clothes made 
 for him when he first went to school. Band after band had burst, 
 and as the rent widened, then, without removing anything except 
 what might drop off of itself, the hole was darned, or patches of 
 fresh law were brought from the nearest shop and stuck on. Hence 
 ^11 ages of English history liave given one another rendezvous in 
 English law ; their several products may be seen altogether, not 
 interfused, but heaped one upon another, as many different ages 
 of the earth may be read in some perpendicular section of its 
 surface — the deposits of each successive period, not substituted, 
 but superimposed on those of the preceding." 
 
 1 The Chancellor D'Aguesseau is said to have on reflection stopped 
 short in his career of law reform, in consideration of the ninnbers 
 of the legal profession who would thereby be ruined.— 1 liutl. 
 Rem. 58.
 
 cu. 11.] CODIFICATION. 171 
 
 profession of tlie law ought never for a moment to be 
 regarded ; for the law was made for the public, and not tlie 
 public for the law. It cannot be expected that any code 
 will, to a very great or material extent, dispense with the 
 profession of the law, or render litigation unnecessary. 
 No code can be so copious and minute as to satisfy and 
 inform any mind, though gifted with the rarest intuition ; 
 nothing less than years of professional practice can ever 
 render a lawyer master of his profession, with or without 
 a code. Nor will a code dispense with the judiciary law, 
 because this is merely tlie mode of reasoning on the 
 principles supplied by the code, and adapting these to the 
 cases that arise. Nor can a code be expected sensibly to 
 diminish litigation, at least in civil cases, for this most 
 commonly originates in temper, pride, revenge, malevolence, 
 and the baser passions ; and, M'hile human nature remains 
 as it is, suits and penalties can never cease from the land. 
 The public seems to care nothing, whether the name of 
 what it ;i"equires is to be a code or a digest, and yet this 
 question has been seriously discussed as a preliminary 
 difficulty. Such a difficulty can only be founded on the 
 concealed liypothesis, that whatever is to be done is to be 
 done for the benefit of lawyers alone. It has been forgot 
 that the public would be satisfied with any summary well 
 arranged, set forth in language of moderate perspicuity, 
 issued under the authority of the state, which can always 
 be relied upon to command at pleasure any amount of 
 clear thought and perspicuous language on any subject 
 capable of being addressed by one intelligent being tt» 
 another. So long as this sunmiary can be relied upon to 
 help the public with its moderate details, it need not be 
 considered what credit, if any, tlie legal profession need 
 give to it. If it is right, it will soon establish its authority 
 even with lawyers : if wrong, the same hand that made it 
 wrong will soon make it right. 
 
 Why it is the ditty of governments to codify laics. — The 
 government of every nation accepts the duty and the 
 liurden of providing courts to accommodate litigants, and 
 of judges to decide between them. The more obscure and 
 inaccessible the law is made to those whose interest, duty, 
 or desire it is to know as much of it as is compatible with 
 other employments, the more judges and courts and
 
 172 ON THE LIBERTY OF THE SUBJECT. Ti^'TRO. 
 
 expense to the country, and the more vexation and loss and 
 expense to the litigants are the immediate consequence. 
 The two things are conspicuous each by itself, and it 
 needs small intelligence to connect them. To the pro- 
 fessional lawyer it must be a matter of indifference 
 whether the materials he deals with are confused and 
 intricate or methodical and easily understood, for the 
 expense of elucidating and disentangling each complication 
 falls on the client, be it much or little. If a lifetime must be 
 spent in acquiring and retaining a good workmanlike know- 
 ledge, it is in the nature of things that the increased cost 
 of the production must in some way be recouped by those 
 who make use of so expensive a material. Though the 
 public cannot reasonably expect to be provided with all 
 the costly tools which lawyers must always use, there is 
 a minimum which is essential to its own guidance and 
 protection, and as to the limits and extent of which it is the 
 best judge. If adults, who have capacity to comprehend 
 how tliey are situated, are content to remain so much in 
 the dark, guessing their way and taking the chance of 
 its turning out the wrong way — if they cannot at present 
 gratify a moderate demand lest the information supplied 
 should not be so perfect and exhaustive as is conceivable for 
 the expert, it is a matter for the public to settle for itself. 
 The remedy lies altogether outside of the narrow precincts 
 of a profession.! It is perfectly conceivable, that a little of 
 such knowledge is a useful thing, and can never be a 
 dangerous, injurious, or immoral tiling. The alphabet and 
 the elements — the primer and the outlines may be the 
 common basis of every business, and must alwnys be better 
 than nothing at all ; and are not the less useful and 
 necessary, because somebody else can, by giving more 
 time and care, carry their uses much further. 
 
 Xot only are the sul:)jccts of the realm entitled to have 
 some care taken, that they should have reasonable means 
 of knowing the law, but there are thousands of justices 
 of the peace constantly at work applying that law and 
 enforcing it ; and as to them, some consideration is pre- 
 eminently due. They are not only left, like the rest of the 
 
 1 HoRBES maintained, with niucii reason, that it was Uic duty of 
 a government to n)ake the laws as accessible to the people as the 
 Bible was.
 
 en. II.] CODIFICATION. 173 
 
 community, to find out the law as best they may, hut often 
 to pay the costs of mistakes which they make from time 
 to time, and most of which arise from the confused state in 
 which the hiw is found. And as they act gratuitously, and 
 discharge important duties, which save the nation a great 
 expenditure, it might be expected that some more precise 
 and useful guide than copies of isolated acts of parliament 
 would be presented to them.^ 
 
 If laws are so obscure and intricate, that they cannot be 
 stated in intelligible language, the time has come when 
 they should cease to be laws. Lord Mansfield said that 
 the property and daily negotiations of merchants ought 
 not to depend on subtleties and niceties, but on rules 
 easily learned and easily retained. But why this simplicity 
 and clearness should be reserved for merchants alone, 
 while the rest of the public are left to grope their way in 
 the dark, it would baffle the wisest judge to explain. 
 Erskine, with more comprehensive wisdom, said, that every 
 man in civilised society has a right to hold his life, liberty, 
 property, and reputation under plain laws that can be well 
 understood.2 And even Blackstone said, that law, being 
 intended for universal reception, ought to be a plain rule 
 of action, and not a science of the greatest intricacy.^ 
 
 Codification has always hcen treated as public benefit. — 
 The codification or digesting of the law of a community 
 has always been marked in history as an epoch of progress, 
 and even those kings and governors, who formed wise 
 resolutions and held good intentions on the subject, have 
 attracted the approving notice of mankind.'^ 
 
 ^ A statute of Henry VIII. ordered the justices of the peace 
 diliji;eiitl3' together among tliemselves to peruse, examine, study, and 
 know the effect and true intent of the laws and ordinances as to 
 vagabonds, embraceries, bowstaves, archerie, unkiwful games, fore- 
 stallers, victuallers, and to divide themselves into two or more, and 
 hold sessions and inquire into all offences, &c. — 33 Hen. VIII. 
 c. 10. It is true the statute said the justices would be paid for their 
 services, but all payment to justices was abolished, even in name, in 
 1854.— 18 & 19 Vic. 126, § 21. The justices of those days were 
 expected to act the part of bailiffs, and search out and seize male- 
 factors. ^ Ersk. Speeches. ^ 4 gi_ Com. 417. 
 
 ^ Solon took care that his laws should be written on revolving 
 tablets, and hung up in the Prytaneum for all the public to read. — 
 Diog. Laert. Solon ; Plut. Solon. The deep reverence of the Komans 
 for law was maintained by their system of education, which obliged
 
 174 ON THE LIBERTY OF THE SUBJECT. [intro. 
 
 Confused state of English laiv requiring code. — Yet the 
 confused and chaotic state of the laws of England has 
 
 the children to repeat by rote the code of the decemvirs. — Cic. De 
 Leg. ii. 4, 23. And Minos was praised by Plato for making it part 
 of his system that the children should be taught the laws. — Plato, 
 Leg. b. i. The passing of the Terentian law, when a universal de- 
 mand sprung up among the Romans for a fixed body of laws, such 
 that people could know what they were bound to do, and so as to 
 limit the capricious decisions of the consuls, almost led to a civil 
 war ; and at last a body of deputies or commissioners were sent 
 forth in galleys, magnificently adorned, to search for suitable laws 
 in Athens, the wisest country then accessible to them, and the laws 
 of the Twelve Tables were thus obtained, and written on brass tablets, 
 and fixed in the forum. — Livij, b. iii, ; Dion. Hal. According to 
 Suetonius, Csesar, disgusted with the uncertainty of legal opinions, 
 had aimed at reducing the diffuse bulk of the law into a few volumes. 
 Suet. Jul. Casar. 
 
 LiYY and Tacitus both complain of the infinite multiplicity of 
 laws. — Livy, b. iii. ch. 34. ; Tac. Ann. b. iii. c. 25. 
 
 Tertullian praises the firmness of Severus for thinning the 
 gloomy and intricate forest of laws without regard to their age or 
 authority. — Tertul. Apol. c. iv. The Twelve Tables, at the end of 
 five centuries, had swelled into 3000 brass plates, deposited in the 
 Capitol. — Suet. Vesp. But the Tables were deemed in their day a wise 
 and prudent selection of the best things in other existing codes. — 
 Tac. Ann. b. iii. c. 27. In the fourth century the law books had 
 accumulated so as to be many camel-loads. — Eunap. in Vet. Edes. 72. 
 In ten centuries. Gibbon observes, " the infinite variety of Roman 
 laws and legal opinions had filled many thousand volumes, which no 
 fortune could purchase and no capacity could digest. The perpetual 
 edict became buried under the "weight of commentators." — Gibbon, 
 Rom. Emp). ch. xliv. 
 
 Ferdinand of Castile, in the tliirteenth century, ordered a collec- 
 tion of laws, which was completed by his son, and called Las 
 Fartidas. A Chinese Emperor, about 1394, gained great renown by 
 ordering the ancient and modern laws to be reduced into one bodj' of 
 300 volumes, though it took a century to complete that collection. — Dv, 
 Halde, 3 Univ. Mud. Hist. 725. The ancient customs of France and of 
 Portugal were digested and collected so as to be memorable improve- 
 ments. — 1 Butler, Rem. 48 ; 8 Univ. Mod. Hist. 432. Historians 
 relate how Denmark enjoyed a pre-eminent felicity in having its 
 laws contained in one small volume so plain and intelligible that all 
 could be understood almost without a comment, and lawyers were 
 scarcely needed, and lawsuits were determined within a year and a 
 month.— 11 Univ. Mod. Hist. r,5'J. 
 
 It was to satisfy the popular desire to know the law, that the 
 government by degrees discovered that if the statutes were ex]iressed 
 in good native language ratlier than in bad Latin, or other foreign 
 tongue, the result would bo no prejudice, but nmch advantage to the 
 people. The Germans dismissed the Latin language from statutes in
 
 CH. II.] CODIFICATION. 175 
 
 long been the ridicule of foreigners, the lamentation of our 
 own intelligent legislators and citizens, a standing con- 
 fession of weakness to many a government, which has 
 constantly postponed to a more convenient season address- 
 ing itself to what Bacon said even in his time would be a 
 heroic work — the making of a digest of the law.^ It is true 
 that the apathy on this subject has never yet been traced 
 to any poverty in the material, and it has been shared by 
 the classes whom a code would most sensibly benefit, and 
 who seem only dimly conscious of a loss from never having 
 enjoyed the possession. A petty state, having little to 
 boast of, may well keep its laws, or what are called laws, 
 hidden in obscurity. But a great country loses half its 
 dignity and strength, when it cannot in an orderly and 
 methodical way give some account to all whom it may 
 concern of the main reasons, why its own social progress 
 and the contentment of its citizens have been so well 
 assured. 
 
 1235. — 3 Camerar. Hist. Med. b. iv. ch. 5. The Castilians, ca few 
 years later, and the French in the time of Francis I., about 1539. — 
 Mariana, b. xiv. ch, 7 ; Mezerac, Hist. b. iii. p. 446. A statute of 
 Edward III. ordered the pleadings to be in English, so that parties 
 might know what was said for and against them. — 36 Ed. III. Our 
 Btatutes were first printed in the reign of Richard III. 
 
 James I., in a speech, recommended that the books of common law 
 be written in the mother tongue, so that the people might not be 
 kept in ignorance (1609), — Wilso^i's Life ofJas. 1. 47 ; see Barr. Stat. 
 291. 
 
 Whitelocke, after the Restoration, complained that in his day, 
 owing to the multiplicity of statutes, few students or sages could find 
 perspicuity or clearness. — 1 Whitelocke, Com. 409. And even Glan- 
 viLLE, so far back as 1188, wrote, in his " Treatise on the Laws of 
 England," that to reduce in every instance the laws and constitution 
 of this realm into writing would, in his time, be absolutely impossible, 
 as well on account of the ignorance of writers as of the confused 
 multiplicity of enactments. 
 
 A code does not dispense with the legal profession. When 
 Frederick the Great published his code, he was so convinced of its 
 being clear to the lowest capacity, that he prohibited professors and 
 others, under severe penalties, from making commentaries, either on the 
 whole law or on any part of it, and they were not allowed even to point 
 out to youths whom they instructed the amplifications, limitations, 
 or exceptions. And even advocates and judges were to cite in their 
 arguments and judgments the pure text of the law and nothing else, 
 the authority and dicta of doctors being viewed as an abomination. — 
 Pref. to Fred. Code. ^ De Augm. b, viii.
 
 176 ON THE LIBEETY OF THE SUBJECT. [intro. 
 
 Definitions of some current phrases and words used in the 
 law. — Now tliat the leading definitions, distinctions, and 
 phrases current in legal literature Lave been noticed, it 
 remains to give some definition of the technical meaning 
 of one or two words, which constantly occur in every page 
 of the law. Such are the words — right, duty, obligation, 
 equity, wrong, tort, crime, treason, felony, misdemeanor. 
 These are, so to speak, the tools and common implements 
 used in manipulating the great variety of matters in which 
 the law concerns itself. 
 
 Definition of " right" " duty" " ohligation." — The words 
 " right " and " wrong," when used as terms of legal art, 
 have nothing in common with the same words as used by 
 moralists and divines. With the latter these words indi- 
 cate distinctions which, according to some, are innate, eternal, 
 and indelible ; and according to others are gradually formed 
 by experience, and indicate those things that are found to 
 be conducive to the greatest happiness of the greatest 
 number, or the reverse ; and so are objects of pursuit or 
 aversion. A "right," in the language of the municipal law, 
 means nothing else than a claim or demand which one 
 individual can enforce against another, that is to say, so 
 far as it is practicable for the law to enforce anything. As 
 already explained, the law can enforce some specific thing 
 only by operating on the reason of the individual, and 
 inducing him voluntarily to do that one thing, lest some 
 other worse thing befall him. In general it may be said 
 that the word " right " is the correlative and counterpart 
 of the words " duty " and " obligation." Whenever B is 
 under a legal duty or obligation, this implies that some other 
 person having a right, namely A, is legally entitled to 
 punish or redress in some way the violation of that duty or 
 obligation ; but whether A, the injured party, or the crown, 
 or any other prosecutor acting in the name of the crown, 
 can vindicate the right, depends on the nature of the duty 
 or obligation which has been violated, and the mode and 
 degree of the injury. 
 
 These explanations will suffice for the three words 
 " right," " duty," and " obligation." 
 
 Definition of word " eq^tity." — Before passing from the 
 word " right " it may also here be noticed that the word 
 " equity," until a recent period, was used in an analogous
 
 (-•11. II.] DEFINITION OF iMGllT AND WilONG. 177 
 
 sense to the word "riglit." When courts of law were 
 separated from courts of equity, the former couits enter- 
 tained actions for vindicating' ri.^lits, just as tlie hitter 
 entertained suits for enforcing equities. Thus a wife was 
 said not to have a right to a settlement out of legacies 
 bequeathed to her by third parties, because courts of law 
 for some reason could not enibice it ; but she had an 
 equity, and courts of equity enforced it. So a man who 
 was injured by a breach of contract or an assault liad a 
 right to recover damages, but he had nut wliat was 
 technically known as an equity, and hence he could bring 
 an action in a court of law, but could not file a bill nor 
 institute any suit in a court of equity. The explanation 
 was, that for some reason or another the jurisdiction had 
 become subdivided between these two courts, and each could 
 administer only a partial remedy in many cases. But in 
 1875 the distinction between courts of equity and of law 
 was abolished, and now all equity is merged in law — all 
 suits and bills are included in actions — all equities are 
 rights, and the Supreme Court of Judicature knows of one; 
 thing only as the foundation of actions and proceedings, 
 and that is some right on the one hand, and some correlative 
 duty or obligation on the other hand. 
 
 Meaning of tvord " wrong." — Another word of common 
 use in the law is " wrong," and here, as already observed, it 
 is used in a sense altogether distinct from moral wrong, and 
 from the vague notion attached in popular language to that 
 word. A wrong, in the eye of the law, is a violation of a 
 legal right, duty, or obligation. Blackstone divided wrongs 
 into private and public — the former including all that gives 
 rise to actions, and the latter includin<^ all that gives rise 
 to indictments and equivalent proceedings. As already 
 defined, an action is the enforcing of a claim or demand 
 which one individual has against another, and wliich by 
 agreement they can between them at any time extinguish 
 without risk or interference or question from third parties. 
 On the other hand, an indictment or prosecution is the 
 enforcing of some punishment for the violation of a 
 duty or obligation, and which cannot be compromised be- 
 tween the wrong-doer and the sufferer alone, but the right 
 of punishment and redress is vested in some third party or 
 public functionary. 
 
 N
 
 178 ON THE LIBERTY OF THE SUBJECT. [inteo. 
 
 Meaning of ivord " tort." — The word " tort " is to some 
 extent synonymous with private wrong, but is used to 
 denote those wrongs only, or violations of right which do 
 not arise directly out of any contract. When duties and 
 obligations arise out of contract, as the duty of a debtor to 
 pay his debt, of a contractor to perform his contract, the 
 violation of such duty is called a breach of contract. But 
 when the duty has nothing whatever to do with any con- 
 tract or pre-existing relation between the parties — as the 
 duty not to injure another when passing along the street 
 or highway — not to allow a dangerous dog to bite another 
 person, the violation of such duty is called a tort. " Tort," 
 is not, however, synonymous with accident, for many 
 accidents occur which the law cannot remedy, and it is 
 often diJBficult to distinguish between a tort, or legal injury, 
 and a mere accident, though the damage actually accruing 
 to the sufferer may be the same. It requires an examina- 
 tion of many minute details of human affairs to trace this 
 distinction. And when an accident is notliing more than 
 an accident, and is not a tort for which the law provides 
 any remedy, it is sometimes called damnum sine injurid — 
 a suffering to some one, but a suffering for which nobody 
 is blameable or responsible, and consequently, which has 
 no remedy provided by the law. 
 
 Meaning of toord " crime" — The meaning of the word 
 " crime " has been, to some extent, already alluded to, und er 
 the head of " right, duty, and obligation." The technical 
 sense of the word " crime " closely coincides with its 
 popular sense. The word is seldom used as a term of legal 
 art, except under one or other of its three denominations — 
 treason, felony, and misdemeanour. It includes the most 
 flagrant violations of right, duty, and obligation — flagrant 
 as regards its motive and origin ; and it is deemed not only 
 hurtful to the individual sufferer, but to the rest of the 
 public also. When A owes B a debt, and refuses to pay it, 
 the violation of duty by A is deemed hurtful to B alone, 
 or at least B may treat it as such, and discharge or waive 
 it, abandoning his remedy, and if so, no harm is done, in 
 the eye of the law, to the rest of the community. But when 
 A stabs B, or steals B's property, though in one sense the 
 violation of duty by A is hurtful to B alone, still, in the 
 estimation of the law, the whole communitv is wounded
 
 CH. II.] MEANING OF CRIME. 179 
 
 through his side, and A is made to undergo some punish- 
 ment, irrespective altogether of what B may think or feel 
 in the matter, and A cannot purge this delinquency by com- 
 pounding with B. The punishment inflicted on A for a 
 crime is sometimes a fine, or sum of money, but more fre- 
 quently a term of imprisonment coupled with hard labour 
 or whipping, and in a few cases the punishment is nothing 
 less than death. It may therefore be stated broadly, that 
 the differential characteristic of a crime is its depraved 
 motive, and its being punished irrespective of the injury 
 done to the chief sufferer, while a private or civil wrong 
 is visited with no punishment at all per se, but merely with 
 some compensation or equivalent to the individual injured, 
 and to him alone. 
 
 Quasi crimes punishable by justices. — It is true that there 
 are a few violations of right which are redressed in a sum- 
 mary way by justices of the peace, which fill an interme- 
 diate place between private, or civil wrongs, and crimes, or 
 public wrongs, being sometimes punished without regard, 
 and sometimes mainly with regard, to the person injured. 
 Such cases on the border line are difficult to classify, but 
 to one or other class they are usually referable, according 
 to the purpose in view. Moreover, though a crime usually 
 involves the violation of some right vested in an indi- 
 vidual who is the sufferer, there are a few exceptional cases 
 where the mdividual vanishes and nothing but an abstrac- 
 tion remains ; but these cases admit, as will be seen here- 
 after, of no serious difficulties of classification. 
 
 Meaning of " treason" "felony" " misdemeanour" — The 
 words treason, felony, misdemeanour, denote the three 
 classes of crimes, and require here only a passing notice, for 
 they are substantially mere matters of procedure, and be- 
 long more properly to that division of the administrative 
 law entituled the judicature. The only importance which 
 belongs to these terms in the divisions of the substantive law 
 arises from the subject-matter, or the particular right which 
 each crime, through its punishment, is designed to secure. 
 It is true, as a general observation, that treason includes 
 the offences against the executive government : while felony 
 and misdemeanour used to be mostly confined to the crimes 
 between subject and subject. But neither class is in 
 modern times so confined. Some of the higher felonies 
 
 N 2
 
 180 ON THE LIBERTY OF THE SUBJECT. [intr' 
 
 used to be called petty treason, but are no longer so. Some 
 of the offences against the sovereign have been taken out 
 of the category of treason, and ranked in the lower grades 
 of felony or misdemeanour. The dividing lines are no 
 longer scrupulously observed in respect of the object and 
 subject-matter protected against these crimes. It wasalso 
 once possible to distinguish treason, felony, and misde- 
 meanour, by the severity of the punishment, and of the 
 incidents both before and after conviction. All ages seem to 
 have agreed in treating treason as a crime of the deepest 
 dye that is known to the law, and therefore to be more 
 severely punished than any felony, because it was aimed 
 at the life of the sovereign, whicli is the keystone of the 
 arch and the centre of the social fabric. To unsettle this 
 is to let loose the elements of mischief far and wide. 
 Hence a traitor was tried by peculiar tests of guilt, and the 
 pains Mere more cruel and prolonged. There were agonies 
 before death, agonies during death, and cruelties after death. 
 After death the traitor's lands and goods were forfeited, and 
 his blood was attainted ; in other words, the relatives, how- 
 over innocent, were deprived of their inheritance, not only 
 of what would have descended to them immediately on 
 his natural death, but what at later times might come to 
 them from those related through the blood of the traitor 
 as a link in the chain of title. From each and all of those 
 superfluous cruelties, one by one, the law, with juster views 
 of its proper province, has retreated. 
 
 Felony' originally meant judgment of life and member, 
 and the two things were often used synonymously.^ Hence 
 if a statute declared a crime felony, and assigned no punish- 
 ment, a capital sentence was implied. In felony, confisca- 
 tion was by esclieat, while in treason it was by forfeiture. 
 Felons were only a little less cruelly dealt with. On 
 conviction their lands and goods were also forfeited in 
 capital cases, and most cases were capital. In misde- 
 meanours neither forfeiture of lands nor goods nor attainder 
 of blood followed conviction. 
 
 1 i Inst. :59l ; 2 Inst 434 ; 1 Hale, P. C. 708 ; 4 151. Cm. 04.
 
 OF THE 
 SECURITY OF THE PERSON.
 
 OF THE SECURITY OF THE PEESOK 
 
 First division of whole law is that relating to the hody or 
 person. — On a comprehensive view of the contents of the 
 law, one or two subjects stand out conspicuous above the 
 rest. The law is often loosely said to be mainly taken up 
 with settling the rights of property, and of vindicating 
 those rights — of acquiring, enjoying, exchanging, and 
 parting with tliem during life, and losing them by death. 
 But there are many important things besides property, 
 which each individual values more highly. He finds him- 
 self a complex being, made up of body and mind, and 
 what is of supreme importance to him is, how to secure 
 the preservation of life, health, and all its natural capaci- 
 ties to the body. What he does is of less consequence 
 to him than what he is and what he feels. He seeks, no 
 doubt, for freedom to possess property. He seeks to have 
 security of contract, security of marriage, security of 
 speech, thought, and character, security of worship, and a 
 share in good government. But nothing touches him so 
 closely as liimself To avoid all personal pain and annoy- 
 ance is usually his first thought, and while other thoughts 
 also lead away to subjects only a little lower in his estima- 
 tion, he never ceases to make his crownin" consideration 
 the preservation of his own body in life, health, and the 
 full vigour of all the faculties of which life is the 
 spring. Of all that the law can do for or against him the 
 most interesting is that part, which consists in achieving 
 the greatest positive comfort and health on the one hand, 
 and on the other hand in avoiding as much pain and dis- 
 comfort to the liody as the law admits. Tliis is the head 
 and front of all law to him, and hence the first and highest 
 division of the law is none other than that which is 
 entituled, " The Security of the Person, or Body."
 
 184 OF THE SECURITY OF THE PERSON. 
 
 Twofold aspect of security of the person. — The first great 
 division of the law, tlierefore, includes all those riglits and 
 liabilities which relate to the body, for though the body is 
 nothing without the informing mind, yet it is easy to 
 single out irom the whole complex system of rights and 
 wrongs, of duties and obligations, those that have for their 
 professed and main object — the preservation of the body 
 from wrong. And while its preservation from wrong is 
 the capitalliead of this division of the law, such division 
 has a twofold aspect. Each individual in seeking to 
 protect his own body must also in the same breath under- 
 take, as the price of that protection, to abstain from wrong 
 to the bodies of others. He must give and take. He 
 cannot enjoy immunity without allowing others to enjoy 
 it also. If his body is injured, others must pay the price, 
 or make up in some way the loss to him ; if others suffer 
 from his injuries to them, then he must pay the like price 
 and make up to them the like loss. The rights, duties, 
 and immunities are thus correlative ; each has rights and 
 duties as against all others ; all others have rights 
 and duties as against him. It is thus impossible to 
 acquire a complete viev/ of the sum of rights of each 
 individual, without including the correlative riglits of the 
 others as against himself. 
 
 The law arrives at a complete protection to each 
 individual, by placing some restraints on all others as 
 well as himself, and these are so arranged, that each in 
 turn is encircled as with a halo, consisting of duties and 
 obligations on the part of all others towards himself, so 
 that whatever mischances or misdeeds of theirs affect 
 him, he can obtain his relief, whether it lie much or little. 
 This circle of rights, duties, and restraints makes up one 
 complete subject, all the rays pointing to one centre ; and 
 while the account is given of one, it answers equally to 
 the situation and the complement of rights of all others. 
 
 Chief heads of first division of the law as to security of 
 person. — In order to comprehend more closely those laws 
 that make up the protection of the body, it is natural hist to 
 see how each individual protects himself against interfer- 
 ence of others. This is done by giving him a remedy against 
 all others for each assault or injury, whether culpable or 
 malicious, whether small or great, which results in mischief
 
 OUTLINE OF THAT SUBJECT. lHr> 
 
 tf) his body. Some injuries are done to the body by 
 nothing worse than mere negh'gence on the part of otliers, 
 tliat is to say, by something not designed or intended by 
 third })arties to injure, but rather the invohmtary conse- 
 quence of some neglect, which, though having at first 
 nothing immediately to do with wrong to anyone, yet results 
 in such wrong to some one. But the law not only provides 
 against actual wrong or injury; it also provides against the 
 mere intention or contemplation of wrong, though nothing 
 actually comes of that intention. And this mere appre- 
 liension of evil obviously ought to take the first place in 
 any account of the securities of the person. And not only is 
 the body of each protected directly against intended wrong 
 and actual wrong : but there are some restraints, which 
 the law i^uts on each person by way of compulsory duties 
 or obligations for the good of all, and though these involve 
 no actual injury to the body, yet, inasmuch as they restrain 
 one's liberty of locomotion and employment to some 
 extent, they operate to qualify that consciousness of com- 
 plete immunity wdiich is felt by each. Still it is not 
 enough to tell one how he is to be protected against 
 intended and actual pain and injury, and also against these 
 compulsory duties, unless he is told at the same time what 
 is the price he is to pay to others for ec^ual protection to 
 them. Tliat price consists in the pains inflicted on his 
 own body, should he be so ill-disposed as to attempt 
 any invasion or attack on the rights of others, in other 
 words, it consists in all the imprisonments, arrests, whip- 
 pings, and capital punishments, which the law awards to 
 each one who will not take the trouble to leave others alone. 
 Again, it will be more methodical at first to explain the 
 above complement of rights as they are found centred in 
 each normal man as the type of a human being arrived at 
 full age, and in enjoyment of health and mental capacity. 
 When these normal rights have been described, then there 
 are four disturbing elements which produce a variation on 
 such rights and duties. These arise out of the four 
 natural events or conditions which may be predicated of 
 each individual. Such are the variations arising out of 
 infancy, sex, insanity, and death. The body of each is either 
 infant or adult, is either male or female, is inhabited either 
 by a sane or insane mind ; and lastly, the body of each is
 
 1S6 OF THE SECURITY OF THE PERSON. 
 
 either alive or is overtaken by death. These four circum- 
 stances affect the complement of rights first described, and 
 produce variations accordingly on the details of the primary 
 law. And by first describing the rights of the normal 
 man, and following the variations of these from infancy 
 to death, through the intervening distinctions of sex and 
 sanity, a complete account of all that immediately affects 
 the liuman body of each individual may be given, and the 
 cycle of such knowledge will thus only be completed. 
 
 Arrangement of cJicqjters of first division. — "When the 
 subjects are methodically arranged in the manner already 
 stated, they fall under the foUowiug natural heads or 
 chapters, which will be treated in their order : — 
 
 I. — Protection of the body against threats and appre- 
 hended injury. 
 II. — Protection of the body against actual injury to 
 
 the body by negligence of others. 
 III. — Protection of the body against actual intended 
 
 injury, but not malicious. 
 IV. — Protection of the body against malicious, wilful and 
 
 negligent acts which kill or wound. 
 V. — Piestrictions owing to compulsory acts and duties 
 
 strictly personal. 
 VI. — Protection of the body against want and des- 
 titution. 
 VII.^ — Temporary arrest and imprisonment other than on 
 
 final judgment or sentence. 
 VIII.— Punishment of the body by death or pains on final 
 judgment or sentence. 
 IX. — Variations in foregoing rights and duties caused by 
 infancy. 
 X. — Variations in rights and duties caused by sex. 
 XL — A^ariations in rights and duties caused by insanity 
 
 and defective understanding. 
 XII. — Variations in rights and duties caused by death. _
 
 CHAPTER I. 
 
 PROTECTION OF THE BODY AGAINST THREATS AND 
 APPREHENDED INJURIES. 
 
 Redress of intended or ajiiireliended wrongs. — The weak- 
 ness of the law is nowhere more conspicuous than in its 
 feeble powers of preventing the commission of wrong. In 
 this respect, as has been already observed, it differs essen- 
 tially from the moral or divine law, which is directed 
 towards controlling the conduct of man by intercepting 
 evil at its source, and changing the secret thought before 
 it ripens into action. To the law is assigned the narrower 
 province of redressing wrongs only after they have been 
 committed, and wlien the mischief can seldom be undone.^ 
 Nearly all the ancient legislators tried to make the law an 
 engine of more ambitious range, akin to the divine, but 
 that dream of empire has long been relinquished by 
 modern legislatures. There is now no division of the law 
 which supplies any machinery wortliy of the name for 
 directly preventing wrong, for this could only be done 
 effectually by imprisoning men, and so keeping them physi- 
 cally incapable of evil — a remedy worse than the disease. 
 It is true that one or two instances of preventive justice 
 
 1 Xenophon praised the laws of the ancient Persians for being- 
 directed rather to the prevention of crime than its mere punisli- 
 ment after it was conmiitted. — Xen. Cyrop. 
 
 Beccaria also says it is better to prevent crimes than to jnniish 
 them ; that this is the fundamental principle of good legislation, 
 which is the art of conducting men to the maximum of Jiappiness 
 and to the minimum of misery. — Becc. ch. 41. But it will be found 
 that modern governments find it impracticable to achieve tins pre- 
 vention of crime by any direct method, though they ought never 
 to lose sight of it as a consummation and final conclusion of their 
 efforts.
 
 188 OF THE SECURITY OF THE PERSON. [cH. i. 
 
 remain, but they practically amount to little else than 
 making the remedy more prompt tlian it would otherwise 
 be, if brought to bear in the ordinary course and at a later 
 stage. In stating, therefore, what provision the law has 
 made to secure the body, it is proper to begin witli those 
 that aim at the prevention or anticipation of wrongs of 
 that class, or, in other woi'ds, the redress of wrongs, which 
 are merely intended, but have not yet been accomplished. 
 
 A threat is a very common and familiar way of dealing 
 with certain persons, and is often little more than an 
 impressive mode of speech. It is obviously no part of the 
 policy of the law to restrict this natural tendency. If it 
 is vague and general, it may amount to no more than 
 salutary advice, but if it is so used as to operate on a 
 person of ordinarily firm mind, and produce an interruption 
 to business or occupation, some reasonable check is required 
 upon any excessive resort to such a mode of address. 
 
 What kind of remedy it is against threats of 'personal injury. 
 — The legislature has not thought fit to treat as an actual 
 crime, either the verbal threat to murder or kill, or even 
 a written threat to do any personal injury short of killing, 
 probably from the difticulty of distinguishing mere violence 
 and heat of lamjuage from that settled malice, which is of the 
 essence of most of the crimes known to the law. Where, 
 however, threats, more or less specific, have been indulged 
 in, sufficient to cause serious annoyance and fear of personal 
 injury to a person of firm mind, the law provides a remedy 
 which somewhat resembles an injunction in equity, namely, 
 the binding over of the threatening party to keep the 
 peace and be of good behaviour. This is further enforced 
 by his finding sureties, and, in case the threat is carried 
 out, the guilty party as well as his sureties are bound to 
 pay a sum of money specified in the recognisance, which 
 is only a species of bond or contract witli the crown, bind- 
 ing the parties to pay a sum, if the condition of the bond 
 be forfeited. 
 
 It will be necessary to state by whom, for what causes, 
 in what manner, and with what results this remedy of 
 swearing tlie peace, as it is called, against another, is 
 administered. 
 
 Any threat or menace to injure the person, even though 
 it is not followed up by any actual bodily injury, or even
 
 CH. I.] THREAT OF PERSONAL VIOLENCE. 189 
 
 by an assault, which is au imminent attempt to commit 
 such injury, is nevertheless at common law a ground of 
 action, provided some interruption to one's business or 
 occupations is the immediate result.^ And all the reason 
 given is, that as it is an inchoate though not an absolute 
 violence, it is in the eye of the law a trespass, for which 
 pecuniary damages may be recovered.^ This is, however, 
 not the wliole of the law, for, owing to the vagueness of 
 most threats and the difficidty of reducing their harm to a 
 definite point, actions as a means of redress are scarcely 
 practicable, and moreover would probably often fail alto- 
 gether when brought to a hearing, for a hearing could not 
 usually be brought about till long after the heat and irri- 
 tation of the moment had disappeared, and the memory 
 of incidents had grown dull. And what most men are 
 contented with is a smaller and feebler, though an instant 
 remedy of a negative character, namely, what is usually 
 called articles of the peace — a species of swearing the 
 peace against the offender and binding him not to carry 
 out his threat, or if it has once been acted on, not to repeat 
 it. It is said to be called surety of the peace, because the 
 party that was in fear is thereby the more secure and safe.^ 
 What is a threat of personal violence. — In exercising this 
 jurisdiction of enforcing sureties of the peace, a delicate 
 duty is imposed on the justices of the peace and the courts, 
 for the primary object of this remedy has been at last 
 defined to be the protection of the applicant against 
 imndnent danger to the person, only in those cases where 
 the danger is such as will seriously affect a mind of 
 ordinary firmness. Every idle apprehension of weak 
 and timid minds is not to be made a pretext for this 
 proceeding, but only such circumstances as tend im- 
 mediately in the judgment of reasonable persons to inter- 
 fere with personal security. In this, and in many other 
 departments, the law is obliged to adapt its remedy to the 
 standard of the normal man, or man of average sense, 
 judgment, and feeling. And the remedy is based entirely 
 on the assumption that the danger apprehended is in the 
 future, for however wickedly and violently the party 
 complained against may have conducted himself in the 
 
 • Finch, L. 202 ; Regist. 104, 27, ass. 11. '3 BLCom.120. 
 
 3 Dalt. J. P. c. 116.
 
 190 OF THE SECURITY OF THE PERSON. [ch. i. 
 
 past, this alone will be no sufficient reason for thinking 
 that he will continue to act in the same way ; and yet, 
 past conduct is generally a very safe guide as to the future, 
 and is not to be entirely overlooked.^ The cases, therefore, in 
 which the law interferes to require security for the peace 
 are such as the following. Where a threat to do bodily 
 injury has been made to one if he go to a particular place, 
 for example, a place he has been frequenting by way 
 of business : ^ a threat to arrest by force a wife who has, 
 by articles of separation, availed herself of the right to 
 live separate : ^ a threat to burn one's dwelling, or put one 
 in prison, or beat, or otherwise hurt one's body, or even to 
 procure others to do tlie act : * a threat, or even a challenge 
 or invitation to fight a duel.^ And the same protection is 
 extended when the threat assumes the form of injuring 
 one's wife or child ; ^ though if the threat is made to one's 
 servant, this is deemed too remote, and it is enough for the 
 servant in that case, to apply for the like protection to 
 himself^ Again, though the threat be qualified as to time 
 and place, as, for example, if the threatened person go to a 
 particular house, or write to a particular female member of 
 the family, the remedy will be granted.*^ And the taking 
 part in a prize-fight by attending it, being an implied 
 breach of the peace, and, indeed, all being guilty of an 
 assault, it also justifies the justices in binding all such 
 persons over to keep the peace.'^ 
 
 Threat to do only moderate harm. — Sometimes the party, 
 with a view to elude this remedy against him, studiously 
 guards his threat by expressing it moderately, as for 
 example, thus : that he will do everything in his power to 
 annoy the complainant " short of actual violence ; " but 
 this show of moderation will be treated as no bar to the 
 remedy, seeing that it is impossible for an angry or spiteful 
 man to keep within the strict line he has laid down for 
 his own conduct.^*^ 
 
 1 Hawk. P. C. c. 60, § G; Dalton, J. P. c. IIG, \\ 269. 
 2 R. V Malliiison, 16 Q. B. .367. 3 Vane's Case, Vi East, 171, ii. 
 '' 1 Hawk. P. C. c. 60, § 6, 7 ; sec a more severe punislitiieiit it' the 
 threat is in writing, 2Jos<. ''' R. v Holloway, 2 Dowl. 525. ^ Dalt. 
 J. P. c. 116. 7 Dalton, J. P. 116. « R. v Mallinson, 16 Q. P. .367. 
 R. w Tolleniachc, 2 L. & M. 401. » R. v Billinjjham, 2 C. & P. 234 
 '0 R. V Stanhope, 12 A. & E. 620, n.
 
 cii. I.] THREATENING CONDUCT. I'jl 
 
 TJireatcning looks and conduct. — And a threat of this 
 kind may be made by looks, tones, and gestures, as well 
 as by express words ; indeed, the one may often be more 
 eloquent and cogent than the other, provided the justices 
 see, that the complainant has acted reasonably in construiog 
 in the right way these inarticulate signs. Thus, where an 
 importunate lover had been forbidden by the mother of a 
 young lady to address the object of his affections, but, 
 nevertheless, he followed the family to the same inn, and 
 pushed past the mother in an eager manner towards the 
 daughter's chamber, he was made to give this security.^ 
 And in another like case, where the gentleman had been 
 rejected as a suitor over and over, but had, nevertheless, for 
 many months been writing to the lady letters of courtship, 
 and pursuing her from hotel to hotel, and town to 
 town, and looking over hedges, waving his handkerchief, 
 and making gestures to her at unexpected moments, the 
 court held that the lady would be well entitled to this 
 remedy, if she could swear to her belief from those acts and 
 behaviour, that he was likely to do to her some personal 
 violence.^ In all such cases the court or justice must not 
 be critical, but must give ear in a great degree to the 
 apprehensions of the party seeking the protection, and 
 nmst enter, to some extent, into his or her feelings and 
 convictions. 
 
 Whether one who libels another can he made to give security 
 of the peace. — It was once keenly debated, especially to- 
 wards the end of last century, whether a libel was such a 
 threat or provocation of violence and injury as to entitle 
 the libelled person to demand security of the peace against 
 his detractor, for it was urged that a libel at the utmost 
 only tends to a breach of the peace, and so does not come 
 within the ordinary province of the justice, who deals with, 
 or ought to be confined to, acts which are imminent 
 breaches of the peace. On this point a great judge, 
 Pratt, 0. J., once said : " I cannot find that a libeller is 
 bound to find surety of the peace in any book whatever, 
 nor ever was in any case except one, viz., the case of the 
 Seven Bishops, where three judges said that surety of the 
 peace was required in the case of a libel. Judge Powell, 
 
 1 Dennis v Lane, 12 Mod. 132. - R. v Dunn, 12 A. & E. 599 ; 
 4 P. & D. 415.
 
 192 OF THE SECURITY OF THE PERSON. [ch. i. 
 
 the only honest man of the four judges, dissented, and 
 I am bold to be of his opinion, and to say that the case is 
 not law ; but it shows the miserable condition of the state 
 at that time. Upon the whole it is absurd to require 
 surety of the peace or bail in case of a liljeller." ^ This 
 opinion was thought for a time to be conclusive, but in a 
 case in 1820 which reviewed that and all the other 
 authorities it was said, that Pratt, 0. J., spoke only as to 
 breach of privilege of parliament ; and it was laid down in 
 this last case, that as libel tends to a breach of the peace, 
 or is in the eye of the law a constructive breach of the 
 peace, it comes within the power of justices to arrest and 
 commit for trial ; and if so, it necessarily follows that it 
 comes within the same jurisdiction to hold the libeller to 
 keep the peace.^ In that case, however, the court lost 
 sight of the vital point, that it must always now be a 
 question of fact, whether a libel tends to a breach of the 
 peace, for the common sense of modern times attests that 
 in the great majority of libels the libeller and the libelled 
 never dream of assaulting each other, however nmch may 
 be their mutual resentment on paper. The utmost length,i 
 therefore, that a court can fairly go is to hold that in some 
 instances, according to the virulence of the libel, the 
 libeller may be called on to give surety of the peace, but 
 not necessarily so in all cases. The qualified manner in 
 which such a rule as that of claiming surety of the 
 peace in cases of libel was put by Pratt, C. J.'s instinctive 
 
 1 R. r Wilkes, 2 Wils. lt)l. 
 
 •■^ Butt V Conant, 1 B. & B. 548. The libel in that case was a 
 f;ross one, namely, for publisliiiig placards stating- tliat Ellenborougli, 
 C. J., was a robber, as lie bad fined the libeller £1,000 and pocketed 
 the fine, &c. The reasoning of the judges led them to prefer the 
 alleged views of Hale to those of Coke, but time seems to be bring- 
 ing tlie law round to the view of Coke on this point. To hold, 
 as Burronghs, J., did expressly, and as the other judges did im- 
 pliedly, that a libel is per .se " a constructive challenge to fight" is 
 extravagant, considering the habitual self-resiraint which distiu- 
 guibhes tlie.present age. Though libels are constantly appearing in the 
 warfare of the press, no one can now assume as a matter (>f law or 
 fact that the libeller and libelled are thereby thirsting for each 
 other's blood, and would inevitably tight, if they met anywhere and 
 everywhere. Such a view either of fact or law is untenable. The 
 fact is, that neither would touch a hair of the other's head in most 
 (asev.
 
 CH. I.] WHO GRANTS SURETY OF THE PEACE? 193 
 
 sagacity, was nearer the true rule tliau that arrived at in 
 the more elaborate reasonings and deductions of his suc- 
 cessors in 1820. Indeed, in a later case in 1853, the 
 utmost that the court would say was that in some cases oi' 
 libel against private individuals a justice of the peace may 
 enforce " sureties for good behaviour." But whether he could 
 enforce " sureties for the peace " (which is a still narrower 
 remedy), was apparently treated as doubtful.^ 
 
 Who grants the remedy of security of the feace. — All 
 justices of the peace are endowed with a discretion to 
 enforce sureties of the peace from an offender as part of 
 the general authority given by their commission. It has 
 been said indeed, that in respect of peers and peeresses, 
 though the same remedy is available, yet the resort must 
 be made against them, not to justices, but to the Queen's 
 Bench, or Chancery Division of tlie High Court.'^ The 
 only reason given by the old authorities for this distinction 
 seems to be, that the law hath " conceived such an opinion 
 of the peaceable disposition of noblemen," that it hath 
 been thought enough, if one of them promises upon his 
 honour that he would not break the peace against a man.^ 
 But it will be difficult to carry out this distinction on 
 any principle, and in a modern case it was deemed prudent 
 in a nobleman, whom the justices bound over, not to dispute 
 their jurisdiction.* Even though justices of the peace or 
 one of them is usually resorted to on occasion of seeking 
 this remedy of security of the peace, if after giving the besL 
 of their judgment to the matter they refuse to ibind ovei- 
 the offender, the complainant may nevertheless resort to the 
 Queen's Bench Division to demand this remedy. And this 
 may be done either in the first instance, or by way of 
 
 1 Haylock v Sparke, 1 E. & B. 471. 
 
 2 R. u Marq. of Cannarllien, Fort. 359. ^ Br. Abr. Contemj^t : 
 Dalt. c. 177. ■" Re Lord Gifford, 1 New Scss. C. 490. 
 
 The authorities, or ratlier dicta as to peers, are all ancient ; and 
 in one of the same class of books it is gravely laid down that "if 
 the sheriff, in executing a capias against a nobleman, relurn ' that 
 the said lord is so puissant *hat he cannot arrest him,' the sheriff 
 might take the fosse comitatvs and 300 mon with him to effect 
 the arrest." — DaJt. c. 117. On such a point as surety of the peace, the 
 court, as Lord Denmnn, V. J., observed, is not accustomeil to regard 
 ancient precedents with great respect. — Prickett v Gratrex, 8 Q. 
 B. 1029. 
 
 VOL. I.
 
 194 OF THE SECURITY OF THE PERSON. [en. i. 
 
 mandamus directed to justices of the peace, if from some 
 mistake or wilfulness they have refused or failed to 
 exercise their discretion on the subject.^ Moreover, where 
 a previous application has been granted by justices, the 
 offender may seek by certiorari to discharge the recog- 
 Tiisances, and so practically reverse their conclusion. Yet 
 ill this last state of things the court will give great weight 
 to the finding of the justices on any matter which they are 
 peculiarly qualified to decide, such as whether the threats 
 of injury were serious or jocular, or metaphorical:'- or 
 whether the amount of security was too high.^ And 
 while the Queen's Bench Division has jurisdiction to enter- 
 tain in the first instance an application for sureties of 
 the peace, yet it is now deemed the proper course, first 
 to apply to justices of the peace, seeing that it is a subject 
 peculiarly requiring examination in the district in which 
 the defendant resides ; and the court will in the exercise 
 of its discretion direct the party first to apply to the 
 justices of the locality for this kind of redress, as it is 
 there the sureties are most likely to live.'^ Or sometimes 
 the court will, after hearing the application, remit the 
 matter to the local justices, at the same time specifying 
 the amount of security to be given by the principal and 
 his sureties.^ 
 
 Bjf and against whom security of the. 'peace, obtained. — The 
 remedy of applying for sureties of the peace is open to 
 every person without distinction of age, rank, or status — 
 an alien, an attainted person,*^ an infant : *" or a wife as 
 
 1 E. V Lewis, 2 Str. 835. 2 R. v Tregarthen, 5 B. & Ad. 678 ; 
 2 N & M. 379. 3 II „ Kolloway, 2 Dowl. 525. 
 
 « R. v Waite, 2 Burr. 780 ; R. -y A. B. 2 L. Kon. 511. 
 
 s Ilutt's Case, 2 Burr. 1039 ; R. v Bomaster, Ibid. ; 1 W. Bl. 
 233. 
 
 Though the exercise of tliis species of jurisdiction is now in 
 practice confined to the local justices of the peace and the Queen's 
 Bench Division, yet the Cliaiicery Division had aiitliority to grant 
 a writ of supplicavit, under whicli the sheriff or the justices of the 
 peace are reqinrc<l 10 arrest and take the offender, or cause him to 
 be taken to prison, till he finds sureties ; and tliat writ again is got 
 rid of only by a writ of supersetleas, when sureties are given or a 
 reason shown wliy they should not be i-cquired. — Fitz. N. B. 80 ; 
 Vnne's Case, 13 East. 172, n. ; 1. Camp. Chrs. 13. 
 
 '' 1 Hawk. P. C. c. GO, § 2. ^ Dalton, J. P. c. 117, § 271.
 
 ca. I.] HOW TO GET SURETY OF THE PEACE. 195 
 
 against lier husband, if he threaten to beat or kill her.^ 
 It M'as once said that a man shall not have articles of 
 the peace against his own wife, for " otherwise any man 
 inight get rid of a shrew." ^ But justices may very well 
 judge of the gravity of the case as between either of the 
 parties according to the ground stated.^ In other respects 
 women are subject to the remedy like men. An exception 
 indeed may be made of lunatics, or children, who have no 
 mind sufficient to estimate impending danger, and for 
 whose protection there are other sufficient remedies.'^ 
 
 Hoiv the ajrplication for security of the peace is supported. 
 — In estimating the weight to be attached to the affida^'it 
 or affirmation of the complainant, the court or justices 
 must, as in other cases, exercise their own judgment ; and 
 though they are not bound to believe a man on his oath 
 if vexation or malice seem to be ingredients in his appli- 
 cation, yet it is to be remembered, that all subjects alike, 
 the ill-conducted as well as the weli-conducted, are equally 
 entitled to the protection of the law. At the same time 
 so serious a restraint as this on the liberty of a third 
 ])erson is not allowed, without the cause of complaint being 
 verified by the complainant's oath.-'' The justices may 
 thereupon, if satisfied that the case is sufficiently estab- 
 lished, issue their warrant to arrest the offender, and, on 
 his being brought before them, he may be committed to 
 prison, until he, with or without sureties, as may be judged 
 expedient by the justices, enter into his recognisance. 
 But before being committed to prison the party must be 
 first asked to find security, otherwise the commitment will 
 be invalid.^ Nor can justices summarily commit one for 
 not finding sureties under an order of Quarter Sessions, 
 there being another remedy in that situation.'' 
 
 Articles of the peace or process for good behaviour cannot 
 
 1 R. V FeiTers, 1 Burr. G35; R. v Bowes, 1 T. R. G'M \ 1 Hawk. 
 c. 60, § 4 ; Kv Lord Vaue, 13 East, 172 n. 2 Yhz. Off. 8 ; Dalt. c. 
 117. 3 R. y ]\Iackenzie, 3 Burr. 1922. " R. v Mackenzie, 3 Burr. 
 1922. 5 R. V Green, 1 Str. 527 ; Hilton v Byron, 12 Mod. 243 ; 
 3 Salk. 248. « r_ ^ Wilks, 1 Hawk. c. 28, § 9. 
 
 7 R, V. Ashton, 7 Q. B. 169. 
 
 Tlie warrant of the arresting justice may be made to bring the 
 party before the justice " or some other justice," thouiih it is better 
 that the same justice should deal with the offender in both stages. — 
 5 Rpp. 59. 
 
 o 2
 
 196 OF THE SECTQRITY OF THE PEESOK [at. i. 
 
 he granted by the Queen's Beneli or Chancery Division 
 except in open court, and if the affidavits are untrue, the 
 court may award costs and damages against the applicant.^ 
 
 Whether the defendant can contradict the facts on which 
 application founded. — An application made for sureties of 
 the peace is an ex parte proceeding, at least to this extent 
 that the court or justices, on being satisfied with the 
 afiidavit, will not lif^ten to any defence which contradicts 
 or impugns the accuracy of the statements of the appli- 
 cant. Any objection may indeed be taken to an irregularity 
 which appears on the face of them.- Attempts are often 
 made on the part of the defendant to show that the com- 
 plainant has omitted material facts, or even falsely stated 
 them, and so misled the justices or court ; but this defence 
 will not be entertained. And the Queen's Bench Divi- 
 sion, for the same reason, will not entertain an application 
 to discharge the recognisances taken before justices on 
 any matter touching the merits of the case as put before 
 the justices. Yet if the articles are on the face of them 
 open to some defect, the Superior Court will on certiorari 
 quash them ; as, for example, where they were not granted 
 on oath.^ While therefore, in articles exhibited in the 
 first instance in the Queen's Bench Division, affidavits are 
 allowed both in corroboration and in answer to those of 
 the complainant, an answer will only be allowed in 
 explanation of ambiguous parts of the articles, as for 
 example the meaniug of such a phrase as " he would do 
 her business." * 
 
 In some cases it may seem unjust that so serious a thing 
 as imprisonment, or compulsory finding of sureties, should 
 be imposed on any man at a moment's notice, and on the 
 mere oath of another, representing that the latter stands in 
 fear of some corporal pain at his hands, and that one's 
 liberty can be taken away without a defence being even 
 listened to. But the theory on which this remedy is 
 founded is, that the matter is urgent, and so much a matter 
 of life and death, or at least of personal safety, that no 
 
 1 21 Jas. T. c. 8. 2 R. ^ Lord Vane, 2 Str. 1202 ; 13 East, 171 n. ; 
 R V Earl Ferrers, 1 Burr. 635 ; li. v Dolierty, 13 East, 171 ; R. c 
 Rianliope, 12 A. i^ E. 020 n. » R. v Malliiison, IG Q. B. 367 ; R. v 
 Dunn, 12 A. & E. 5'J9 ; Lort v Iluttun, 45 L. J. M. C. 'J5. ^ R. v 
 Bringloe, 13 East, 174 n.
 
 cs. :.] IMPRISONMENT FOE WANT OF SURETIES. 197 
 
 delay or cavilling about facts can te tolerated. And while 
 this consideration should make justices of the peace and 
 ■courts extremely carelul not to giant this request on sL'ght 
 grounds, yet the resj)onsibility is entirely thrown on the 
 complainant, whose j)er&onal apprehensions cannot indeed 
 be easily measured or refuted at the moment, but who may 
 afterwards be called to answer for any wilfully liilse 
 statements, on which his suspicions profess to be founded. 
 He is liable, for example, hrst to the pains of perjury, and 
 indeed where on the complainant's own statement manifest 
 contradictions appeared, the court has ordered him then 
 and there to ]>e prosecuted for perjury, and has dismissed 
 liis application.-^ And where on a "ivife swearing articles 
 of the peace against her husband, it appeared from other 
 collateral motions and the defendant's affidavit, that she 
 Avas insane and suffering from delusions, the application 
 was at once dismissed.- 
 
 Not only is an applicant who acts falsely and maliciously 
 liable to indictment for perjury, but he is also liable to an 
 action for maliciously causing the arrest or maliciously 
 causing the defendant to be bound over. And in such 
 action the injured party need not, as in other cases of action 
 for inalicious prosecution, prove that the decision of the 
 justices was in his favour, for a result of that kind is not 
 in such a case possible.^ 
 
 Hovj long a imrty may he ijuprisoyicd for not givin-g 
 security of tlie pence. — It may be asked how long a justice 
 may consign a person to prison for not giving securities for 
 the i)eace, for it is easy to see that this may be used as a 
 means of imprisoning for life. Some of the old authorities, 
 such as Dalton and others, expressly said, that a justice 
 could bind a party dui'ing his life. But Hale was thought 
 \o have interpreted the statute, 34 Edward III., which 
 authorised justices to bind malefactors to their good be- 
 haviour, as not meaning such binding to be perpetual, but 
 only till the time of trial arrived. The point, however, 
 having been reviewed on the authorities, the court in 1819 
 held that Hale was speaking only of persons charged with 
 offences and waiting for trial ; and that in other cases, where 
 
 ' E. V Famell, 2 Burr. 806 : R. v. Mallinson, 16 Q. B. 367. 
 " R. v Mackiiiizic, 3 Burr. 11)22. 3 jjtewart v Grosiiet, 7 C. B. 
 N.S. 191.
 
 198 OF THE SECURITY OF THE PERSOX. [cir. 3. 
 
 no charge is pending, it was the inherent power of justices 
 of the peace to bind persons for a fixed term, and the reason 
 given was, because it saved the expense and trouble of such 
 party attending at (quarter sessions, and allowed the matter 
 to be considered at intervals.^ In the case of O'Connell, the 
 defendant was ordered to enter into a recognisance with 
 sureties, conditioned to keep the peace and be of good- 
 behaviour " for seven years next after the acknowledgment 
 thereof." Tindal, C. J., thought that as the defendant could 
 instanter enter into the recognisance, there was no illegality 
 in an order for such a recognisance to commence after a tern) 
 of imprisonment which was itself uncertain, as being depend- 
 ent on the payment of a fine. But Lord Campbell thouglit 
 such a judgment was bad, as tending to perpetual imprison- 
 ment, and that a sentence should be so framed, that the 
 defendant, after being in custody during the time for which 
 the recognisance was given, might be restored to liberty.^ 
 
 In cases where husbands subjected their wives to cruelty, 
 it had been usual to bind the husband over for one year. 
 But when INIr. Bowes, in 1787, maltreated his wife, the 
 Countess of Strathmore, by getting armed men to carry her 
 oif to Strickland Castle, where he imprisoned her several 
 days, till she obtained a habeas corpus, the Court of Queen's 
 Bench then, as it was not a first offence, bound him over for 
 fourteen years, himself in 10,000/. and two sureties in 5,000/. 
 each. It was afterwards complained that such length of 
 time was oppressive, for any conceivable remedy by wife 
 against husband could be prosecuted within one year. The 
 court, while incidentally assuming tliat they had no doubt 
 of their power being unlimited and enduring so long as 
 public justice required, yet yielded to this reasonable com- 
 plaint, and consented to reduce the term to two years.^ In 
 a later case the court held, that a justice cannot legally 
 commit a man, " till he find sureties," for his finding them 
 may, owing to no fault of his, be simply impossible.* 
 
 It has at length been enacted by statute that one justice 
 of the peace shall not bind over persona to keep the peace 
 for more than twelve calendar months.^ And though no 
 
 > Willes -i; Bridt^es, 2 B. & Aid. 278. Wflkes v R., Wilmot's 
 notes, ;522. 2 O'Connell v R., 11 CI. & F. 4U7. -^ R. v Bowes, 1 T. R. 
 G'JG. " Prickelt v Gratrex, 8 Q. B. 1020 ; 2 New Sess. C. 429. '-^ IG 
 & 17 Vic. c. 30, § 3.
 
 CH. I.] ARREST TO BIND OVER TO THE PEACE. 109 
 
 limit has yet been put to tlie power of two or more justices 
 or of the .Superior Court, this indication of opinion by the 
 legislature will no douljt be followed as a general rule by 
 all courts in other cases. At the expiration of the time, 
 whatever it is, justices have no power to insist on further 
 extending it on the original complaint ; at least the court 
 wisely doubted this in 1787.^ Any such power of indefi- 
 nite imprisonment for such a cause niaj'- be easily abused, 
 and the genius of our law is now settled against imputing 
 to any man a general disposition to set all law at defiance, 
 wliicli is the real foundation of this somewhat arbitrary 
 power, which has been so long confided to courts. As all 
 conceivable crimes and wrongs can be prosecuted and a 
 remedy obtained within a year or near it, there never can 
 in any case be a sound reason for extending imprisonment on 
 this ground beyond one year. It is also to be noticed, that 
 though it is now in the power of courts, when a man is 
 convicted of an indictable felony or misdemeanour under 
 the Criminal Consolidation Acts, to order him, in addition 
 to the ordinary pmnshment, to enter into recognisance and 
 find sureties to keep the peace, yet no person can be 
 imprisoned under that power for more than one year.- 
 
 Mode of arresting and hinding over a -party to security of 
 tli£, peace. — AVhen the justices have issued their peace- 
 warrant or warrant to arrest the party complained against, 
 it nmst be addressed to and executed by the constable 
 named therein, or it may be addressed to the sheriff, who 
 may direct one of his sworn officers to execute it. The 
 officer, in either case, may seize the party wherever the 
 latter is found, and may even break into the party's or a 
 stranger's house to apprehend him ; but before doing this, 
 the officer must first give notice of the charge to the person 
 in occupation and request admittance. If the officer is not 
 a sworn and known officer, lie must be appointed by a 
 precept in writing from the sheriff'.^ When the arrest is 
 made, the officer must, without unreasonable delay, convey 
 the party (unless indeed such party willingly accompany the 
 officer) to the justice, who issued the warrant, or some other 
 justice, if the warrant so specifies. It is the officer's duty 
 
 1 R. V Bowes, 1 T. R. 696. 2 24 & 25 Vic. c. 9G, § 117 ; c. 97, 
 
 § 73 ; c. 98, § 51 ; c. 99, § 38 ; c. 100, § 71. » Hawk. P. C, c. GO, 
 \\ 11, 13 ; 2 Hawk. P. C. c. 14, §§ 2, 3.
 
 200 OF THE SECUKITY OF THE PERSON. [ctj. i. 
 
 to give facilities to the party to comply with the require- 
 ment of the law without unnecessary restraint, though he 
 is not obliged to go up and down seeking for sureties.^ But 
 the officer cannot of his own accord reconvey the party to 
 prison for refusal to find sureties, for such refusal ought to 
 be made to the justice himself A fresh warrant may then 
 be issued, reciting such refusal and the reason of the 
 imprisonment.'^ 
 
 If the party prefer, he may go voluntarily before a justice 
 and enter into recognisances, which will have the effect of 
 superseding any warrant that may have been issued ; and 
 it will be the duty of the justice who issued the warrant 
 to make out a supersedeas, or to grant a liberate, if neces- 
 sary, for his discharge from gaol.^ At one time turbulent 
 persons used to go voluntarily and bind themselves over 
 and procure their own sureties, who on request superseded 
 the recognisances and caused confusion, and affronted the 
 justices of their locality. Hence by statute, in 1623, it 
 was, by way of check, provided that such supersedeas 
 must be moved for in open court.^ 
 
 The usual practice is for the justice to bind over the 
 defendant only, until the next quarter sessions, when that 
 court may ord.er the party to be discharged, or enter into 
 further recognisance. And the recognisance must be 
 certified to the next quarter sessions, there to remain of 
 lecord.^ When sureties enter into the recognisance, they 
 bind their executors and administrators as well as them- 
 selves, so that in the event of the death of one of them the 
 recognisance remains in full force.*^ Yet if a surety become 
 bankrupt, or fall into poverty, the party may be called upon 
 to enter into a new recoo'nisance. 
 
 Effect and hmding force of the recognisance. — The effect 
 of the recognisance on the defendant and his sureties is, 
 that they must observe the condition, and see to its being 
 strictly complied with ; otherwise the recognisance may be 
 forfeited. To fail wilfully in appearing at the time stated;^ 
 to commit an act of violence or to renew a threat of 
 
 ' Dalton, c. 118. ^ 1 H.iwk. P. C. c. 60, § 12 ; Dalton, J. P. 
 
 c. 118 ; 2 Hale, P. C. 112. ^ 1 Hawk. c. GO, § 14. ^ 21 Jas. I. 
 c. 8. 5 3 i^en. VII. c. 3 ; 1 Hawk. P. C. c. 60, § 18. « Dalton, 
 c. 119, p. 278. 7 Lamb. J. P. 78 ; Cromi)t. 125 ; 3 Hen. YIl. c. 3 ; 
 Daltoa, c. 120 ; 1 Hawk. c. GO, § 18.
 
 CH. I.] DISCHARGING SURETIES OF THE PEACE. 201 
 
 assault to the complainant or to others ;^ or to be convicted 
 of any offence which in itself is a breach in law,- will be 
 a ground of forl'eiture ; though mere words of anger or of 
 slander, such as calling one a knave or rascal, will not be 
 so construed. 
 
 But there are many things which the party bound by 
 recognisance may do, which are no breach of the recog- 
 nisance, though they savour of violence or physical force. 
 In order to understand w^hat amounts to a breach, it is 
 necessary to remember that the recognisance is sub- 
 stantially a covenant with tlie crown not to do violence to 
 a particular person named, or do anything to the terror of 
 the public generally. Hence it is not inconsistent with 
 this main object, that the party may commit a trespass on 
 another's lands ; or wrongfully seize another's goods ; or 
 even steal another man's goods, provided no person is put 
 in terror thereby. All these wrongful acts may be punished 
 by course of law in other ways, but nevertheless are no 
 breach, and cause no forfeiture of the particular recog- 
 nisance, inasmuch as they are not necessarily connected 
 with the special engagement it embodies. The mode of 
 forfeiting a recognisance entered into before justices is 
 prescribed by statute; and the result is, that the sureties and 
 the defendant must ultimately pay the money thereby 
 secured as a debt to the queen ^; and it may be recollected 
 that imprisonment for a eiK)wn debt is not yet abolished. 
 
 Getting recognisance of the peace discharged. — As the 
 object of a recognisance is to secure a sum of money to 
 the sovereign, should violence be done to some individual, 
 if the sovereign or tlie comjDlainant die, the recognisance 
 becomes void, and the party, if in prison, is entitled to his 
 discharge.* But the complainant has no power to release 
 the defendant, the contract being one entered into with 
 the sovereign alone, and as the sovereign merely represents 
 the subjects, no pardon or release by the sovereign will 
 amount to a discharge.^ The recognisance used to be dis- 
 charged, however, by forfeitJiire. It may also be discharged 
 by having been fully obeyed during the prescribed period. 
 Nevertheless it is the duty of the party bound to appear 
 
 1 1 Hawk. c. GO, §§ 20, 21. 2 16 & 17 Vic. c. 30, § 2. 3 3 Geo. IV. 
 c. 46 ; 4 Geo. IV. c. 37 ; 16 .S: 17 Vic. c. 30. ^ 1 Hawk. P. C. c. GO, 
 § 17 ; Dalton, c. 118. M Hawk. P.C. c. GO, § 17.
 
 202 OF THE SECURITY OF THE PERSON. [cH. i. 
 
 at the day named, and if the complainant do not appear, 
 and there is no charge of any breach, he is then entitled to 
 his discharge ; ^ and when a party is committed for default 
 of finding sureties, he is not entitled to demand a copy of 
 the examination, for the purpose of bringing an action for 
 malicious prosecution, for that right is confined to cases 
 where he is about to be tried for a specific offence.^ 
 
 Surety of the ijeacc required in some cases hy statute. — For 
 the reasons afterwards stated it is not now usual for 
 justices to entertain an application to swear a party to his 
 good behaviour as a substantive proceeding ; nevertheless 
 there are exceptions, where by some statute the court is 
 authorised in substitution for, or in addition to, some other 
 punishment, to compel the party to enter into a recog- 
 nisance to be of " good behaviour." Those words are often 
 added to the words " to keep the peace," as if they were 
 intended to bear the same meaning. In all such cases, 
 the statute will serve as the justification for requiring the 
 security. Thus, where a person has been convicted of an 
 indictable misdemeanour under the Criminal Consolidation 
 Acts, the court may compel him to enter into recognisance 
 " to keep the peace and be of good behaviour." In those 
 statutes the legislature seems plainly to have viewed the 
 words " good behaviour," as having a meaning almost 
 identical with " keeping the jjeace." 
 
 In aggravated assaults on any male child under fourteen 
 or any female, express power is given to the justices on con- 
 viction of the offender to bind him over to keep the peace 
 and be of good behaviour for six months after the expira- 
 tion of the sentence passed.^ And even in dismissing a 
 charge for a common assault, the justices may see sufficient 
 ground in the evidence for binding over the defendant to 
 keep the peace, though lie was not summoned for that 
 matter.* Moreover, in all misdemeanours punishable by 
 imprisonment, the rule is laid down, that on conviction the 
 court may order the defendant to give security to keep 
 the peace.'' And this is frequently added to the other 
 jiunisliment I'or a riot, a rout, an unlawful asseiubly, or an 
 affray." 
 
 1 Dalt. c. 120. 
 Ses8. C. 179. 3 24 & 
 N. S. 547. 5 Diu.ii 
 
 'i R. V Hcrefordsliire. 1 L. M. P. 32P, ; 4 Now 
 fe 25 Vic. c. 100, § 43. " Exp. Davis, 24 L. T., 
 V R. 12 Q. B, 102G. ^ Scoj'ost, tliose heads.
 
 cn. I.] SURETY FOR GOOD BEHAVIOUR. ^ 203 
 
 How far siLrety for good heliaviour may he ordered. — The 
 proceeding of Innding over a party to keep tlie peace 
 towards .some individual is an intelligible and necessary- 
 remedy or precaution, because it points to a definite and 
 precise mischief which it is designed to avert. It is 
 founded on the oath of an individual, that already some 
 overt act or disposition towards personal violence has been 
 manifested, and that if the party is not restrained or 
 cautioned in an emphatic manner, he may do irreparable 
 mischief. But when in somewhat similar circumstances 
 it is thought to extend such jurisdiction into a wider sphere, 
 and to demand " sureties for good behaviour," this involves 
 so vague and shadowy an imputation on the party aimed 
 at, that courts might well hesitate to act upon it. Good 
 behaviour in the view of the law can only mean conduct 
 flowing from a general disposition to observe its directions 
 in their full latitude and detail ; and indeed such a frame 
 of mind ought to be frankly expected and presumed in 
 all citizens whatever. If any person manifests a pro- 
 clivity towards any specific crime, tliere are, or ought to 
 be, appropriate modes of punishing not only the crime, but 
 any attempt to commit it. All kinds of threats of violence 
 towards the person are fully disposed of, as already 
 described, in the application to swear the peace. To go 
 beyond that and exact sureties for being a good citizen, 
 without leference to any overt step towards a breach of 
 the law, is to travel beyond the proper province of the 
 law into the region of morals, and to seek a kind of specific 
 performance of good conduct, which comes neither witliin 
 the category of crime nor any attempt ov threat to comnat 
 it. It would be time enouoh to interfere when something 
 has been done sufficiently definite to disturb the general 
 security, which the law throws round every subject of the 
 realm. 
 
 Nevertheless, the commission of the peace, under which 
 justices act, in terms authorised the justices to exact sureties 
 for good behaviour as something separate from keeping the 
 peace. It might, indeed, have been excusable for the legisla- 
 ture in the reign of Edward III. to expect some j^ractical 
 value from overawing turbulent characters by enforcing a 
 solemn covenant with the sovereign to be of good behaviour. 
 The primitive usages of life in an age when a police code was
 
 204 OF THE SECURITY OF THE PERSON. [cii. t. 
 
 vaguely conceived, when population was scanty, and crimes 
 were only sketched out in outline, and the general sense 
 of security was weak might have all'Owed of this kind of 
 rude justice. But such a practice is scarcely consistent 
 with modern civilisation, for no punishment or remedy is 
 now left to the arbitrary or paternal discretion of a judge 
 or ministerial officer, and everything which the subject is 
 to avoid, or to be punished for not avoiding, is clearly laid 
 out before his eyes, so that he who runs may read. When 
 the words in the commission of the peace, and the statute 
 of 34 Ed. III., c. 1, on which such commission is founded, 
 are examined, it would rather appear to be the correct 
 construction, that the words "good behaviour" were meant 
 to be merely synonymous with security for the peace. 
 The criminals indicated as then dangerous and of evil 
 fame were rioters, rebels, robbers, and idle vagabonds, and 
 these are so alluded to as to suggest violence to the person 
 as th« imminent danger to be apprehended ; and all these 
 can be kept under by swearing the peace. 
 
 In the time of Lord Coke tlie judges had arrived at the 
 view, that nothing was included in " good behaviour " which 
 was not included in " keeping the peace," and that what- 
 ever tended immediately to the breach of the peace was 
 the test of what was provided against by swearing to good 
 behaviour, as well as swearing the peace.^ For where a 
 man had been bound by surety for good behaviour, and 
 afterAvards said to his complainant " thou art a liar," " thou 
 art a drunken knave " — these words were deemed not 
 necessarily to import any design to break the peace, and 
 so were held no breach of good behaviour. Neverthe- 
 less, it seems to have been the practice of justices of the 
 peace during some centuries to interpret more or less 
 liberally their powers of imprisoning the subject until he 
 found sureties for good behaviour, and to extend this kind 
 of vigilant repression to persons whose conduct did not 
 cause any breach of the peace, though in other respects 
 suspicious and reprehensible.^ Dalton says that he had 
 as justice once ordered sureties for good behaviour from a 
 man who l)ought ratsbane and mixed it with corn to 
 poison his neighbour's fowls, and " the whole bench " held 
 
 1 4 Tnst. 181 ; Lamb. 115. 2 Crompt. 121, 120 ; Fitz. 7.
 
 ni. I.] SURETIES FOR GOOD BEHAVIOUR. 203 
 
 it a very good reason, and so did the judges of assize in 
 like cases.^ And the same aiitliority thought this remedy 
 was peculiarly wliolesome and suitable against all who 
 resorted to liouses of evil-fame or associated with bad 
 women. At that time, however, a constable, on seeing a 
 man and woman go into a house of ill-fame, was entinisted 
 witli such large powers that he could " take company with 
 him and search the house," and if found, could cfirry both 
 parties to prison or before a justice to find sureties for 
 good behaviour.2 And common haunters of ale-houses, 
 drunkards, gamesters, and night walkers could be treated 
 in the same rough fashion, unknown in modern times. 
 
 "While, therefore, there are old authorities which show, 
 that the justices of the peace magnified very trifling irre- 
 gularities into serious crimes,, and went the length of 
 exercising this delicate jurisdiction against frequenters of 
 houses of ill fame, putative fathers of bastard children, 
 libellers, gamesters, vagabonds, eavesdroppers, and other 
 evil-doers, without respect, apparently, to whether their 
 conduct caused a breach of the peace or not/ this ex- 
 treme pressure, whether it was ever justifiable or not, 
 cannot now safely be brought to bear, seeing the policy of 
 the law is to discountenance everything like vague accu- 
 sation and suspicion as a ground for interfering with the 
 liberty of any man.^ And though so late as the time of 
 Hawkins (in 1716), after some misgivings about the extent 
 
 1 Dalt. c. 124. 2 Ibid. 3 Lamb. 115: Pultou, 18 ; Dalton, c. 
 123; 1 Hawk. c. Gl. 
 
 ■* A respectable justice of the peace of the early part of James I. 
 thus discourses complacently on his power of repressing misbehuviour, 
 and advises his brother justices how to act: "You may see ad- 
 mitted by the court (1^ Hen. VII.) that if a man in the night season 
 liaunt a house that is suspected for bviwdry, or use suspicious com- 
 pany, then may the constable arrest bim to find surety for his good 
 abearing ; for bawdry is not merely a spiritual offence, but mixed 
 and sounding somewhat against the peace of the land. And there- 
 fore it sliall not be amiss at this day, in ni}' slender opinion, to grant 
 surety of the good abearing against him that is suspected to have 
 begottrn a liastard child, to the end that he may be forthcon)ing 
 when it shall be born ; for otherwise there will be no putative 
 father found, when the justices shall, after the birth, come to take 
 order forhis punishment." — Lombard, 119, This last crucial difficulty 
 as to putative fatliers has been got over tolerably well, but in a 
 different way. — Seepos/, ch. ix.
 
 206 OF THE SECURITY OF THE PERSON. [.:h. i. 
 
 of the justices' powers, he went the length of saying that he 
 was inclined to think that a justice had a discretionary 
 power to take surety for good behaviour of all those whom 
 lie had just cause to suspect to be " dangerous, quarrel- 
 some, or scandalous," it is equally clear in the present day, 
 that if such a doctrine ever was correct, it has long ceased 
 to be so, and the less this ancient process is resorted to ni 
 any case whatever, the better, seeing that there is abund- 
 ance of regular remedies available on all hands for all the 
 pressing evils that can arise, and remedies too, in course 
 of which both sides can be heard fairly out. 
 
 Another reason why this jurisdiction should no longer 
 be exercised is, that when such a recognisance is taken, it 
 IS difficult to define what would be a breach of it, and this 
 increases that uncertainty which is justly odious to the 
 law. All the laws must be equally obeyed by a good 
 citizen, and any one breach naist be a misbehaviour. Yet 
 it would be impossible to hold that each deviation from 
 the duties of a good citizen was to be visited by double 
 punishment, namely, the forfeiture of the recognisance and 
 the penalty assigned by another procedure to the commis- 
 sion of the illeaal act. Justices and offenders would be 
 e([ually harassed by waging this incessant warfare with an 
 uncertain enemy. 
 
 If security for good hchavwur can he enforced against 
 libellers. — Much discussion arose towards the end of the 
 last century (as it did also in the matter of surety of the 
 peace) as to the power of courts to enforce sureties for 
 good behaviour against those who publish libels, it being 
 argued that this savoured of tyranny, and was against the 
 liberty of the press. But in 1808, when the question was 
 laised and argued, it was said that the House of Lords had 
 consulted the judges, who unanimously gave their opinion 
 that on judgment for a misdemeanour the court might 
 adjudge the defendant to give security for his good beha- 
 viour for a reasonable time.^ In proceedings before judg- 
 ment there is more doubt. Pratt, C. J., declared that it 
 was unlawful I'or justices to require sureties for good 
 behaviour from libellers, but this was probably founded on 
 the other part of the rase then in question, namely, that 
 
 • R. V Hart, 30 St. Tr. 1131, 13-44 ; 47 Lords J. 271 ; Dunn v R., 
 12 Q. B. 1041.
 
 CH. I.] WRITTEN THREATS PUNISHABLE. 207 
 
 a secretary of state was not in the position of a justice of 
 the peace.^ Yet it has been since said that in some cases 
 of libel against private individuals, justices of the peace 
 may bind the party to his good behaviour, though no 
 charge of crime is made.- On tbis subject the remarks 
 already made about articles of the peace against libellers 
 equally apply.^ 
 
 Saretji for f/aod behaviour ordered hy statute. — Owing 
 tx) the wide and liberal ideas of courts and legislatures on 
 this subject, and the practice already mentioned, various 
 statutes, chiefly of ancient date once did, and so far as 
 they are unrepealed still do, autliorise the court on a con- 
 viction for certain offences to require, in addition to the 
 other punishment, that the offender shall enter into secu- 
 rity for his good behaviour for a time subsequent.^ Such 
 are the Criminal Consolidation Statutes already mentioned."' 
 
 Certcdn 'Written threats punislied more severely. — Not only 
 are threats of violence to the person subject to the kind of 
 redress already mentioned, namely, security of the peace, 
 but there are also threats of another kind, sometimes 
 equally violent and imminent, and sometimes rather sug- 
 gesting moral than physical pressure, which the law has 
 singled out for a heavier punishment. These are threats 
 made in writing to do special kinds of injury, and which 
 no man can receive with entire equanimity, for the cir- 
 cumstance of their being put in writing denotes a delibera- 
 tion and malignity, which mere verbal and hastily-uttered 
 threats seldom suggest. All sucli written threats, though 
 not amounting to any actual injury, tend to cause such 
 perturbation of mind with regard to the future, and as to 
 the next step that may be taken by the enemy, and are so 
 incompatible with that liberty which is essential to the 
 pursuit of every kind of business, or even to the enjoyment 
 of life, that the law has thouglit fit to punish them severely. 
 Tliese may be here shortly noticed. 
 
 Letter threatening to murder, hum one's house, &c. — By 
 express enactment, whosoever maliciously sends or delivers 
 a letter or writing threatening to kill or murder a person, 
 
 1 R. V Wilkes, 1 B. & B. 548 ; R. v Shuckburgli, 1 Wils. 29. 
 
 2 Haylock v Sparkc, 1 E. & E. 471. ^ Sge ante, p. r.)2. 
 
 "* It is the same for keeping a disorderly house, 25 Geo. II. c. 3R, 
 § 6. 5 ^,;;.^ p. 202.
 
 208 OF THE SECURITY OF THE PERSON. [ch. i. 
 
 is guilty of felony.^ And for a like reason to threaten by 
 letter or writing to burn or destroy one's house, buildings, 
 or corn, or ship, or wound one's cattle, is punishable in the 
 same way.^ 
 
 Whether the judge or the jury constrvx the vjritten threat. 
 — When the judges were consulted by the House of Lords on 
 Fox's bill being introduced, they gave their opinion, that it 
 was for the judge and not for the jury to say what was the 
 meaning of a threatening letter.^ But the passing of Fox's 
 Act abrogated the old rule, if it ever existed, in the case of 
 libel, and thereby enhanced greatly the power of juries, as 
 will be afterwards seen. The rule that the jury may construe 
 a written threat, and say what it meant, has accordingly 
 long been adopted. Thus it was held to be unnecessary, 
 in order to constitute the offence of threatening to burn, 
 that the words " burn or destroy " be actually used, if the 
 jury hold that the language is equivalent.* And though 
 the general rule is still, for the judge alone to construe a 
 written document, and say what it means, such rule is 
 departed from in a case of this kind. And as the sending 
 of such a letter is often contrived with secrecy, the statute 
 assigns the same punishment to whoever shall " directly 
 or indirectly send, or cause such letter to be received, 
 knowing the contents thereof;" and thus whether the threat 
 is sent to the person threatened, or whatever be the means 
 by which it reaches him, or even whether it reaches him 
 or not, if once sent upon its errand, are matters now wholly 
 immaterial. If a letter be put in such a place that it is 
 likely to be handed by a servant or other person to the 
 person intended to be threatened, that is sufficient.-^ And 
 the fact of other letters of a threatening kind having been 
 sent before or afterwards, or any declaration afterwards 
 having l>een made to that effect, is admissible to show the 
 intent or explain the meaning.^ 
 
 Letter deynanding vioney without cause. — Not only is a 
 
 ^ 24 & 25 Vic. c. 100, § 16. The punishment is penal servitude 
 for five to ten ye.ars, or iiitprisonment for two years. — -7 & 28 Vic. 
 c. 47. '-2 24 & 25 Vic. c. 117, § 50. 3 29 Pari. Hist. 1309. i R. r 
 Girdwood, 2 East, P. C. 1121 ; 1 Leach, 142 ; Kv Tyler, 1 Moody, 
 C. C. 428 ; R. v Bouclior, 4 C. & P. 56.3 ; R. v Tucker, 1 Mood. 
 C. C. 134. 5 R. V WagstalT, R. & R. C. C. 398 ; 2 East, P. C. 1115, 
 1120, 1122. G 2 Leach, 749 ; R. v Tucker. 1 Mood. C. C. 134.
 
 en. I.] THREATENING LETTER. 200 
 
 written threat to iimrder aiiotlier or to destroy his property 
 a felony, but it is also felony to send or cause to be sent a 
 letter demanding witli menaces and without any reasonable 
 or probable cause any money or valuable tbing.^ And this 
 is not the less a threat, that the party may be indicted for 
 larceny.^ Yet the demand must be made in such terms 
 as to unsettle a firm mind,-^ and must involve value.* 
 Even to imprison on a fictitious cause is a threat in this 
 sense.^ Such a mode of demanding a debt which is due is 
 not unfrequently resorted to ; but if there is a real debt, the 
 severe punishment already described is inapplicable, how- 
 ever threatening be the language a real creditor sometimes 
 uses. In his case, there being a cause of debt, the law 
 does not interfere by stigmatising his demand of it as a 
 crime; and though using threats may be a good reason 
 for applying for security of the peace, debtors seldom 
 think fit to resort even to that remedy.^ 
 
 Letter threatening to accuse in order to extort money. — A 
 still more odious crime, liable to the same punishment, is 
 that of sending a letter accusing or threatening to accuse 
 any other person of any of the more serious offences, or of 
 rape, or the infamous crime, with intent thereby to extort 
 or gain money or a valuable thing.'' And indeed it is not 
 merely the putting into writing of a threat to accuse of 
 an infamous crime that is punishable, for even verbally 
 
 1 24 & 25 Vic. c. 90, § 44 ; 27 & 28 Vic. c. 47. The words are 
 " any property, chattel, money, valuable security, or other valuable 
 thing." The punishment is penal servitude for life, or not less tlian 
 five years, or imprisonment for any term not exceeding two years, 
 with or without hard labour, and with or without solitary confine- 
 ment ; and if a male under sixteen, with or without whipping. 
 
 2 R. V Robertson, 1 L. & C. 483. ^ k v Walton, 1 L. & C. 288 
 * R. V Hamilton, 1 C. & K. 212. •'^ R v Robertson, 1 L. & C. 482. 
 
 *' When a Roman noble was importuned to pay his debts, it is said 
 that some trusty sycophant was often procured to prefer a charge of 
 poison or magic against the insolent creditor, wlio was seldom 
 released from prison till he had signed a discharge of the wiioh^ 
 debt. — Gibhon, Rom. Emp. ch. xxxi. 
 
 ' 24 & 25 Vic. c. 96, § 46 ; 27 & 28 Vic. c. 47. The crimes th^^^tened 
 are " any crimes punishable with death, or sevcji years' penal servi- 
 tude ; or an assault with intent to conunit rape, or an attempt or 
 endeavour to commit rape, or any infamous crime, as buggery, or 
 any assault with intent to commit buggery, or any attempt to do so, 
 or any threat or persuasion to induce one to do so." i ,-^ 
 
 VOT,. I, r
 
 210 OF THE SECUEITY OF THE PERSON. [cH. r. 
 
 accusing any one of sucli crime with a view to extortion 
 will subject the accuser to the same punishment.^ This 
 demand of money, coupled with a threat, for both must 
 concur, must be sufficiently distinct that a jury can clearly 
 construe the writing to that effect.^ And a threat includes 
 a statement that evil will befall if the money asked is not 
 tnven ; moreover it is always a question to be decided with 
 reference to minds of ordinary firmness, as distinguished 
 from a state of health causing any exceptional sensitiveness 
 on the part of the threatened person.^ And whether the 
 party accused really committed the alleged crime is al- 
 together immaterial if the intention was to extort money, 
 though the truth of the charge might in that case show 
 that the thing aimed at was rather compounding felony 
 than this particular crime.^ And if the threat be to pub- 
 lish a libel, it is immaterial whether it is really libellous,^ or 
 whether the court of accusation is a real court,*' or whether 
 the threat was aimed at the prosecutor's son rather than 
 himself.'^ 
 
 It is indeed an indictable offence at common law for two 
 or more to conspire to defame and disgrace one, if the intent 
 is to extort money ; ^ and it is the same to indict for any 
 off"ence for the purpose of extorting money.^ But a mere 
 threat to sue for penalties is not deemed serious enough to 
 disturb a firm mind.^'' And for a like reason, whoever, 
 with intent to defraud or injure another, shall by violence, 
 or threat of violence, or of accusation of crime, induce 
 or compel one to execute or destroy a deed, or valuable 
 security, commits a felony, and is punishable in the same 
 nianner.^^ And a similar offence to the foregoing is that 
 which consists in threatening to " publish something " in 
 order to extort mouey.^^ All these things disturb one's 
 peace of mind, and interfere with one's occupations, what- 
 ever they be. Hence it is, that in all the preceding cases of 
 
 1 24 & 25 Vic. c. 96, § 47. 2 r. ^ Menage, 3 F. & F 310. 
 
 3 K. V Smith, 19 L. J.,M. C. 80 ; R. -y Robinson, 2 East, P. C. 1110 ; 
 2 I.each, 749. ^ R. v Richards, 11 Cox, C. C. 43 ; R. v Cracknall, 
 10 Cox, C. C. 408. ■' R. V Redman, 10 Cox, C, C. 159. 6 r^ 
 Robinson, 2 M. & Rob. 14. " R. w Redman, L. R. 1, C. C. R. 12. 
 8 1 Lev. 62 ; 1 Sid. 68 ; 1 Keb. 203, 254. '•> R. v Hollingbcrry, 
 
 4 B & C. 328. 10 R. V Foutherton, 6 East, 126. i' 24 & 25 
 Vic. c. 06, § 48. 1I2 c & 7 Vic. c. 96, \ 3.
 
 CH. I.] CHALLENGE TO FIGHT. 211 
 
 threats in writing it is wholly immaterial, whether the 
 menaces or theats be of violence, injury, or accusation 
 made or caused by the offender or any other person he 
 employs.^ 
 
 Challenge to fight, lioio treated. — We come now to a 
 species of provocation to break the peace which is perhaps 
 the most unmistakable of all that have yet been men- 
 tioned, and it involves such a renunciation of all law, 
 such a defiance of all order, and of tliat moderation and 
 self-restraint which characterise a peaceful citizen, that it 
 is difficult to comprehend with what complacency it has 
 been deemed during so many centuries a venial, if not a 
 laudatory step. As it will be necessary at a later stage, 
 and under the head of murder by duelling, to notice this 
 subject more particularly, it will be enough here to say 
 that a challenge to fight a duel seems of all others one 
 that pre-eminently calls for some instantaneous remedy, 
 and a swifter punishment than any of the preceding. A 
 challenge to fight betokened a bloodthirsty and uncon- 
 trollable passion and malignity which too long attracted 
 a morbid and misplaced sympathy during the course of 
 many centuries. Such challenge was indeed often sent 
 as a pretext for burning, pillaging, and ravaging the 
 property of the opponent if he refused it, and the Golden 
 Bull of the Emperor Clmrles IV. forbade challenges on 
 that very account.^ Our law was, in theory, most decisive. 
 A challenge to fight, being in its view a provocation to a 
 breach of the peace, is a misdemeanour at common law, 
 and punishable by fine and imprisonment, and also by 
 compelling surety of the peace for a time to come.^ And 
 though circumstances of provocation may mitigate the 
 punishment, yet these can form no justification or defence.* 
 Challenge to fight mag be verbal or lurittcn. — A challenge 
 is not indeed to be inferred from mere abuse and strong 
 language, yet if the words used involve indirectly an 
 
 1 24 & 25 Vic. c. 96, §49. 2 n Univ. Mod. Hist. 377. 3 R. 
 
 V Rice, 3 East, 581 ; Comb. 10. 
 
 Fonnerly a public recantation of the act •n^ns, or might be made, 
 a part of the punishment, or, as Hobart called it, the defendant was 
 sentenced to " wear papers." — R. v Darcy, 1 Sid. 186 ; Moor, 563 ; 
 Hob. 215. 
 
 < 1 Hale, P. C. 452 ; R. v Tavemer, 1 Ro. Rep. 360. 
 
 P 2
 
 212 OF THE SECURITY OF THE PERSON. [en. 
 
 invitation to figlit, instead of resorting to a court of law to 
 settle disputes, it is of no consequence whether the words 
 are spoken or written, or whether the invitation is conveyed 
 by circulating papers or libellous prints.^ And indeed 
 where a letter containing a challenge has once been posted, 
 the offence is committed whether the letter reach the party 
 intended to be challenged or not.^ It is, however, obvious 
 that angry words, though tending to provoke anger, are 
 not to be lightly construed into a challenge to fight, as, for 
 example, merely calling a man a liar.^ It is also to be 
 borne in mind that language which fifty years ago may 
 have been properly construed to amount to a challenge, 
 or an attempt to induce a challeiige, may, according to 
 modern ideas, no longer reasonably bear such a construc- 
 tion, for the standard of morality and propriety varies from 
 time to time on this and other subjects. The phrase, 
 " seeking the satisfaction usual among gentlemen," would 
 now be interpreted differently from what was usual in 
 former times, for people have now outgrown the ferocious 
 instinct to fight over every dispute, and learnt to moderate 
 their rage till a court of law shall solve the difficulty. 
 
 Attempt to provoke a challenge is a crime. — A mere 
 attempt to provoke a challenge is equally indictable with 
 a direct challenge or invitation, nor is it any defence that 
 the attempt did not succeed, or that the intent was not 
 directly apparent, for the law often infers a guilty intent 
 from tiie fact of provoking a. third party.^ And where the 
 defendant wrote, "You behaved like a blackguard, and I 
 expect to hear from yon, and will attend to any appoint- 
 ment you think fit to make," the court held this indictable, 
 for it was merely playing on a different passion, while the 
 purpose in view was unmistakable. In the case, however, 
 last mentioned, Lord Ellenborough thought it might in 
 some circumstances be justifiable to send an ostensible 
 incitement to a challenge, in order to develop and detect 
 the real disposition of a suspected enemy, who harbours 
 latent purposes of a malicious and dangerous kind, and so 
 as to support an application for security of the peace.^ 
 
 1 Lord Darcy v Markliiiiii, Hob. 120; R. v Hicks, Id. 215 ; R. v 
 buTigley, 2 L. Raym. 1029, 2 Salk. 697. ^ r_ ^ WillianiR, 2 Camp. 
 506.'' 3 R. V Laiij^ley, 2 L. Rayiu. 1031. * R. v J'liillips, 6 Ea^^t, 
 4(14. ^ U.v riiillips, G East, 475.
 
 rn. r.] INTIMIDATION IN WOUIv. 213 
 
 }^)Ut that explanation ought at least to be set up expressly 
 as a defence, with the reasons for so acting. 
 
 Criminal informntion sometimes (jranted for a challenge. — 
 An indictment is the ordinary remedy for a challenge or an 
 attempt to procure a challenge to fight, and the Queen's Bench 
 Division is slow to grant a criminal information, especially 
 where the applicant lias himself been originally in fault, 
 (jr there is any defect in the materials on wdiicli the charge 
 is founded.^ Such a special remedy indeed is now seldom 
 jipplied for except where some grave public importance is 
 involved in the dispute.'^ 
 
 Usual imnuhmcnt for a challenge to fight. — The punish- 
 ment for the misdemeanour of sendin<^ a challenge to fiffht 
 is entirely in the discretion of the court, but it is usually 
 severe, owing to the highly turbulent disposition displayed. 
 [n a case in 18U3, where a lieutenant in the navy chal- 
 lenged his superior oflicer, the defendant was fined £0)0, 
 was imprisoned for one month in addition to his previous 
 imprisonment, and ordered to give surety to keep the peace 
 for three years, lumself in £1000 and two sureties each in 
 £500.^ And the Star Chamber once fined a person £10,000 
 for sending a challenge, Laud saying that the practice was 
 against the law of all nations.* 
 
 Intimidation and molestation in business. — There is 
 another form of interfering with the security of persons 
 without actual violence, which, though it consists chiefiy 
 of the apprehension of a more remote evil rather than any 
 pain or suttering imminent to the body, remains to be 
 noticed. This is tlie intinndating of others in such a way 
 as to compel them to alter their conduct, to abandon 
 certain employments, or join in certain associations which 
 otlierwise they are not inclined to do. This violation of 
 law seems to have been familiar to the leuislature for 
 centuries, but lias arisen more prominently of late out of 
 the complicated interests which the dissensions between 
 labour and capital have from time to time occasioned. 
 
 ' R. V Hanker. 1 Burr. 316 ; R. v Younglmsband, 4 Nev. & Man. 
 «5U ; R. V Larrieu, 7 A. & E. 277. 
 
 - In appl^iui;- for a cnniinal information, tlie throatenins^ letters, 
 or at least veritied co})ies, shonld be produced. — R. v Cliappell, 
 1 Burr. 4U2. As to duelling, see "Homicide." 
 
 ^ R. V Rice, 3 East, 581. * Burn, Star Cli. 133.
 
 214 OF THE SECURITY OF THE PERSON. [ch. i. 
 
 Principles of common law as to interfering with another's 
 work. — The principle of the common law is said to be that 
 every man is entitled to attend to his own business in his 
 own way, without any further interference from others than 
 arises from a like right on their part to do the same ; and 
 this indeed is an axiom which, according to our experience, 
 all laws must assume as a starting point. The ancients, 
 it is true, had most of their manual labour done by slaves, 
 but the dignity of modern freedom draws after it other 
 conditions. Difficulty may exist in defining how near the 
 pursuit of one man's interests must come to thwart those 
 of another before the law can take notice of it. But this 
 much is self-evident, that if A, not by accident, but pur- 
 posely, puts himself in the way of B in order to prevent 
 B going about his own business in his own way, this will 
 primd faeie be, and ought to be, a cause for some kind of 
 interference on the part of the law. Whether the obstruc- 
 tion is physical, such as an actual assault or imprisonment, 
 or whether it is moral, such as a threat to do some harm 
 unless B acts otherwise than he is inclined to, ought not to 
 make any real difference, for the terror which disables the 
 mind and unfits it for the business of life may be the 
 result of some mental calculation as well as of imminent 
 physical pain. It has been seen that where A is likely to 
 repeat an assault or threatens to injure B, there is open to 
 B the remedy of exhibiting articles of the peace against 
 A; and that, altogether irrespective of what B was then 
 doing or intending to do. And thongh the intimidation, 
 against which sureties of the peace have been required and 
 granted, savours of physical force, yet it is difficult in 
 point of principle to draw the line between that and a 
 kind of intimidation which, though somewhat less cogent, 
 so-mewhat more remote and circuitous, is nevertheless 
 equally effective within a certain range even on minds of 
 ordinary firmness. Cases of this last kind have become 
 conspicuous within the last half century, where workmen 
 who are members of trade unions concuss other workmen 
 to become members of the same union, or members to 
 conform to the general wish, the motive being to compel 
 these so to act that the power of such unions by force of 
 numbers and unanimity may be irresistible. 
 
 Ancient law as to freedom of trade. — Tliat Ojelicate sense
 
 CH. 1.] LAW AS TO FKEEDOM OF WORK. 215 
 
 of freedom and that sensitive abhorrence of dictation and 
 pressure of all Icinds which is felt in modern times was 
 not to be expected in earlier ages and rude communities, 
 for the more we recede from civilisation to barbarism, the 
 more does the spirit of domineering, violence, and reckless- 
 ness of others' interests and feelings appear to prevail in all 
 relations of life and all relations of business. A delicate 
 and habitual regard for the rights, interests, and feelings of 
 others is the fruit of civilisation alone. Yet a giinmiering 
 of the first principle, that trade is free, and that all re- 
 straints on trade are odious, seems long to have been 
 traceable, as is seen in the early cases about engrossing, 
 and enhancing the price of, victuals.^ And the clause in 
 Magna Charta securing to each his liberties was under- 
 stood by Coke to imply this as a common law right or 
 liberty, for he says every subject " hath freedom to put 
 his clothes to be dressed by whom he wiU." 2 It was thus 
 deemed to be a common law principle that trade must 
 not be restrained, and the rule as to monopolies was said 
 to be one of the natuiul developments of that principle. 
 Nevertheless, the long series of statutes, beginning in 
 the time of Edward III., called the Statutes of Labourers, 
 which had for a main object to fix wages and prices, and 
 even punished those who engaged for other wages and 
 prices, was in direct confiict with that principle, though 
 our early legislators obviously did not comprehend its 
 true bearings, or see it in that light. Thus it was that the 
 courts and the legislature became possessed with two 
 irreconcilable principles, freedom of trade on the one hand, 
 and the restriction on trade caused by fixed wages on the 
 other hand ; and between these extremes their minds must 
 have always vibrated and become confused. Hence the 
 early, and even not a few of comparatively recent decisions 
 on these subjects are not entitled to the veneration 
 commonly paid to the judgments of the courts on things 
 firmly grasped and better understood. And in estimating 
 the force and effect of their decisions, the existence of 
 these two irreconcilable doctrines must always be borne 
 in mind. 
 
 In these circumstances it was not to be wondered at that 
 so laie as the year 1800 it was deemed still an indictable 
 > 3 Inst. c. 89. '^ 1 Inht. 47.
 
 216 OF THE SECURITr OF THE PERSON. [ce. i. 
 
 offence at common law for a hop merchant to buy up 
 most of the hops in the market in order to enhance the 
 price, and he was fined 1,000/., and imprisoned for four 
 months.^ All punishments for engrossment were how- 
 ever repealed in 1844,^ but conspiracies to vary the 
 market by false rumours were left as before, and there are 
 other forms of encroachment on trade still existing and 
 still to be apprehended, lor liberty of trade or contract is 
 nothing else than the natural rioht of each man to turn 
 his faculties and his opportunities to the best account, 
 subject to the least possible interference from all other 
 fellow subjects. As Coke remarked, every man's trade 
 maintains his life, and to dispossess him of one is to dis- 
 possess him of the other.^ Again it was also held, that a 
 man's personal freedom is so inseparable from his life that 
 he can neither part with it, nor bargain it away, nor trans- 
 fer it to the keeping of third parties ; and ail agreements 
 to such an effect are illegal and void both in the transferor 
 and the transferee.^ And in like manner it has been 
 held that a person's labour is so essentially his own, and 
 inseparable from his person, that he can neither sell it, 
 nor transfer it, nor by any covenant or agreement extin- 
 guish or suspend it, except for such limited time as is 
 involved, for example, in the usual agreement to serve a 
 master.^ Tliis is founded on the inviolability of the 
 person in matters of business, or, as it is called, on the 
 reason against restraint of trade. 
 
 Trade unions interfering with worh. — It seems only a 
 development of the same principles to say that a workman 
 cannot by any valid agreement divest himself of the 
 liberty to employ himself on any terms he thinks reason- 
 able, and that any attempt of third parties, whether 
 founded on contract or not, to dictate to him, irre- 
 spective of his own will, when he shall cease to work, is 
 illegal. It is illegal in him as well as in those who bargain 
 witlr him to such an effect, and neither can enforce such 
 a contract against the other. Iir otlrer words, any trade 
 
 1 J^. V Waddiiigton, 1 East, 143. 2 7 & g Vic. c. 24. 3 Case 
 
 of iVIonopolPBS, 11 Kep. 87a. 
 
 •* Kc Suiiiersetl's case, 20 St. Tr. 49. This point belongs to the 
 head of law, to be afterwanis treated, entitled, " Securitv of 
 Contract." ^ lliUoii ;• Eckcrslcy, G E. & B. 47."
 
 CH. J.J DECOYING ANOTIIEirS SEilVANT. 217 
 
 union assuming power to dictate to a workman, whether 
 a member or not, when he shall leave a service, does an 
 act wliicli the workman may with impunity resist and 
 disregard. And this view of the law has been confirmed 
 by a very recent statute, to be mentioned. And for like 
 reasons, a combination of masters to discharge servants at 
 the dictation of third parties, in order to keep wages low, 
 was held, if not an indictable offence at common law, as at 
 least contrary to the freedom of trade, and as so far void, 
 that it could not in any way be enforced.^ 
 
 Action fur decoyiny another s servant — It is indeed at 
 common law an actionable wrong to induce or procure a 
 workman to break his contract, if the breaking causes 
 damage to the master. Hence if I, by offering higher wages, 
 or otherwise, cause him to leave, so that his master suffers 
 loss, his master can sue me for such loss, and recover 
 damages, the two elements of liability against me consist- 
 ing in my knowing that the workman was at the time 
 under contract to another master, and that the breach 
 of such contract which 1 procured would cause his then 
 master some loss.^ But on tlie other hand, if I without 
 any active inducement, by offering larger wages, cause 
 another's servant to leave his master, and such servant 
 chooses to accept my terms and break his contract with his 
 former master, that is to say, if I have left it entirely 
 to the servant's election, I incur no liability and do no 
 wrong ; the servant in that event alone incurs liability 
 for the breach of his contract with the former master, in 
 which case, if he pay proportionable damages, he will be 
 quit of his liability. At the most he must pay tliose 
 damages due to the former master for the breach of con- 
 tract, and when those are paid we are both free to do as we 
 please.^ Such a remedy, namely, the recovery of damages 
 for any loss suffered, seems adequately to meet the occa- 
 sion. And it has been held, that though I actively procure 
 a workman to break his contract, 1 commit no indictable 
 off'ence at common law, and that no one can be indicted 
 
 1 Hilton V Eckerslcy, 6 E. & B. 47. 2 Lmiiley v Gye, 2 E. & B. 
 216 ; Blake v Laiiyoii, G T. R. 221 ; Fawcetl v Beavres, 2 Lev. 03. 
 3 Bird V Kandall, 3 Burr. 1345 ; 1 W. Bl. 387. See comments ou 
 that case in Godsall v Boldero, D East, 72.
 
 21H OF THE SECUKITY OF THE PEESON. [ch. i. 
 
 for being a common procurer of servants to break their 
 contracts, an action of damages being at most the only 
 remedy.^ It seems to follow from the same principle, that 
 if a trade nnion induced a workman to break his contract 
 and leave his master, this would be no indictable offence 
 at common law ; but at most those who so advised the 
 workman would be liable for damages in an action by the 
 master. 
 
 Old statutes as to servants leaving their service. — The 
 Statute of Labourers of Elizabeth in 1562, while repealing 
 the older statutes beginning with Edward III., and con- 
 solidating and re-enacting their better parts, made it 
 compulsory on workmen to serve for not less than a year, 
 and fixed their wages and hours of work, and punished 
 absenting workmen with fine and imprisonment, and 
 punished masters paying more than legal wages with fine 
 and a shorter imprisonment. So that the most rigorous 
 relations between master and workmen were thereby 
 riveted on both — relations at which modern experience 
 and enlightenment revolt.^ That class of statutes made 
 it a penal offence for a workman to break his contract 
 and leave the service : and hence it was held that if 
 several combined to commit a penal offence, this was 
 a conspiracy, and indictable as much as if the breach 
 were itself indictable.^ But it cannot with safety be laid 
 down that an agreement or combination to commit a mere 
 actionable wrons against A would be indictable at common 
 law, though some dicta, and even one or two decisions, 
 apparently go to that extent.* Much confusion has 
 no doubt existed on this subject, which has been chiefly 
 caused by the doctrine of freedom of trade being erro- 
 neously mixed up with the question of breaking an 
 isolated contract, and sometimes it has been doubted 
 whether, thougli it may not be an indictable offence to 
 induce one servant to desert his master, it may not be so 
 to induce a strike of worknaen, in other words, a large 
 body of workmen to desert simultaneously with the in- 
 
 1 R. V Daniel, C^ Mod. 182 ; E. v CoUing-wood, 2 L. Eayin. llfi. 
 2 25 Edw. III. St. 1 ; 5 Eliz. c. 4 ; repealed in 1875 l.y38& 39 Vic. 
 c. 8G, § 17. "■' E. V Thompson, 10 Q. B. 832. •* Bee comments 
 
 on authorities, Wright's Criminal Conspiracies, 40-43. ^
 
 cii. I.] COMBINATION OF WOEKMEN. 2l'J 
 
 tention to cause loss to the master \vlio employed them.' 
 And if it be said to be contrary to justice that a master 
 should suddenly be subject to wholesale desertion, the 
 abandonment of his business, and irreparable loss of profit 
 on large contracts, for the successful carrying out of which 
 steady and continuous labour is essential, it may be 
 answered that the only appropriate remedy lies in his 
 own hands, namely, that he should guard in all his con- 
 tracts against any responsibility or loss arising iron) strikes 
 among his own men in the same way as he guards against 
 the hurricane and the pestilence, or any act of God which 
 he cannot control. 
 
 Scries of statutes as to combinations of worhmcn. — 
 Another class of statutes were passed for the express 
 purpose of making combinations for certain defined objects 
 connected with trade indictable offences. These were the 
 combination statutes, beginning with the Statute of Con- 
 spirators of 33 Edward I., and including statutes of 
 Henry VI. and Edward VI., down to George III. The 
 statute of Edward VI. shows that workmen were then in 
 the habit of making confederacies and agreements as to 
 the hours they should work, and what work they should 
 do in a day, and what prices they should work for, and 
 those that so conspired were declared liable to fine and 
 imprisonment, and on a third offence to be set in the 
 pillory, and to lose one ear, and be declared infamous."'^ 
 And in 1725 the offence of threatening masters or 
 others for not complying with their rules and demands 
 was declared felony.^ In 1825 the old statutes were 
 repealed, and while workmen and masters were severally 
 allowed to meet, confer, agree, and settle as to wages, 
 hours, and prices, all persons were declared liable to im- 
 prisonment for three months if by violence, threats, 
 intimidation, or molestation they forced or endeavoured 
 to force a workman to depart from his; hiring, to refuse 
 work, to become a member of a club, or to comply with 
 rules made as to wages ; and the same if they forced a 
 master to alter his trade or business, or to limit his work- 
 men and servants.* In 1871, and again in 1875, that 
 
 1 Per Crompton, J., Hilton v Eckersley, G E. & B. 47 ; Erie, 
 on Trade Unions, 36. ^ 2 & 3 Ed. VI. c. 15. ^ 12 Geo. I. c. 34. 
 4 6 Geo. IV. c. 12'J.
 
 2-20 OF THE SFXURITY OF THE PERSON. [en. i. 
 
 prior statute was repealed, and such offences were defined 
 in different language. 
 
 Under the various combination statutes there was 
 nevertheless nothing illegal in workmen carrying out a 
 strike, so long as those who struck did not break their con- 
 tract, but gave regular notice to leave the work, and so 
 long as they abstained froni the violence, threats, intimida- 
 tion, and molestation described by that class of statutes.^ 
 There were, however, many loose expressions pervading 
 the decisions of the courts, which were naturally due to 
 the great multiplicity of the statutes and Uie uncertainty 
 as to their precise objects, as well as to the ignorance 
 of those laAvs since made plain by political economists. 
 And until very recent times it was doubted whether, irre- 
 spective of any breach of contract, and of any threat or 
 molestation, the mere fact of several workmen combining 
 simultaneously to leave the service, though each could 
 do so with impunity, was not an indictable offence. 
 All tliis confusion was sought to be put to an end in 
 1871 and 1875, when the last revisions of these acts took 
 place.^ 
 
 Trade union not illegal in itself. — It is now declared by 
 statute that there is nothing illegal in the purposes of any 
 trade union, so as to avoid any agreement or trust by reason 
 merely that it is in restraint of trade.^ At the same time 
 a trade union still cannot enforce any agreement, with or 
 between its members as to the terms on which each will 
 accept employment, or the payment of his subscriptions or 
 lines, or as to allowances made for acting in conformity 
 with the society's rules."* 
 
 Modern definition of intimidation in another's business. — 
 The law of intimidation connected with trade disputes was 
 after much discussion at last declared by the legislature. 
 The Conspiracy and Protection to Property Act of 1875 
 enacted that whosoever should be guilty of the following 
 
 > R. V Selsby, 5 Cox, C. C, 495, n. ; R. v Shopperd, 11 Cox, C. C. 
 325. It was lield, however, also that to strike in breach of their 
 contract, tliat is to say, to combine to connnit a penal offence, was 
 a nioleslation within the statutes. — R. v Rowlands, 5 Cox, C. C. 4U4 ; 
 2 Den. 361. 
 
 2 38 & 39 Vic. c. 8G ; 34 & 35 Vic. c. 31 ; 39 & 40 Vic. c. 22. 
 
 3 34 ik 35 Vic. c 31, § 3. ' 34 & 35 Vic. c. 31, § 4.
 
 CH. I.] INTIMIDATION DESCRIBED. 221 
 
 conduct, with a view to compel any other person to abstain 
 from doing or to do any lawful act, in other words, from 
 pursuing any lawful business, should be punishable. Tliis 
 conduct is described as wrongfully and without legal 
 authority, (1) using violence to or intimidating any other 
 person, or his wife, or children, or injuring his property ; or 
 (2) persistently following any other person about from place 
 to place ; (3) hiding any tools, clothes, or other property 
 owned or used by any other person, or depriving him of or 
 hindering him in the use thereof; (4) watching or besetting 
 the house or other place where any other person resides 
 or works, or carries on business or happens to be, or the 
 approach to such house or place ; or (5) following any other 
 person with two or more other persons in a disorderly 
 manner in or through any street or road.^ But in order 
 not to interfere w^ith the legitimate objects of associations 
 of men, who are careful, while seeking occasion to reason 
 and expostulate with others, not to go the length of intimida- 
 tion, it is provided that the attending at or near the house 
 or place where a person resides or works, or carries on 
 business or happens to be, or the approach to such house 
 or place, in order merely to obtain or communicate in- 
 formation, shall not be deemed a watching or besetting 
 -within the meaning of this section. By this qualification 
 fair play is given to all kinds of argument and discus- 
 sion.2 The same enactment, though its chief moving cause 
 was the difticulty of protecting workman against work- 
 man, is stated in sufficiently general language to include all 
 persons whatsoever, and is no longer a piece of class legis- 
 lation. Whenever a person, whether workman or not, who 
 has a legal right to do or abstain from doing any act is 
 wrongfully, and without legal authority, and with a view 
 to compel him to act against his will, persistently followed, 
 w^atched, or beset, or if his wife or children are intimidated 
 
 » 38 & 39 Vic. c. 8G, § 7. " The Conspiracy and Protection of 
 Property Act, 1875." 
 
 2 The word " intimidation " was said by the jud<?es in O'Connell's 
 case not to be a word of art and not necessarily to import a bail 
 sense. — O'Connell v R., 11 CI. & F. 407. But time has since changed 
 that sense, and tliis statute lias now made the word a word of art, 
 and used it in a bad sense. — Ibid.
 
 222 OF THE SECURITY OF THE PERSON. fcH. i. 
 
 or mobbed in the street, a criminal, or at least a penal, 
 offence is committed.^ 
 
 The punishment for these offences of intimidation and 
 besetting is somewhat peculiar. There are two remedies 
 provided. One is a summary proceeding before one or 
 more justices of the peace ; but such justices cannot impose 
 a higher penalty than twenty pounds, nor impose a longer 
 imprisonment than three months ; and yet it is discretionary 
 in them to punish the offender in either of these two ways. 
 At the same time the offender, when accused and brought 
 before the justice, has a right to declare that he objects to 
 be tried by such court, and in that event the offence must 
 be treated as an indictable offence, and he can only be 
 committed for trial before a jury in the ordinary way. If 
 he is tried and convicted before a justice, he may appeal 
 to quarter sessions, but there is no appeal against a con- 
 viction if such conviction is upon an indictment.^ 
 
 Fair argument hy trade unions is legal. — The recent 
 statutes, modifying the common law relating to interference 
 with the liberty of otliers in matters of trade and business, 
 have singled out those acts which most frequently occur 
 to disturb the natural right of each to settle for himself 
 the kind of work and the kind of master, as well as the 
 terms of employment, which he will accept. These statutes 
 punish, in a more summary way than the common law did, 
 the commission of acts savouring of intimidation and 
 moral pressure sufficient to operate on a reasonable mind, 
 and yet care is taken to leave untouched the riglit of free 
 discussion and expostulation between man and man on all 
 points relating to their common interest. The essence of 
 the whole, in short, is, that any trade union may now use 
 all means of fair argument, discussion, expostulation, and 
 comparing of notes with every person it can reach ; and, 
 indeed, without this free interchange of thoughts and 
 views, the liberty of the subject would be seriously 
 endangered ; and tlie natural right of workmen to join 
 their forces and further their common interest would be 
 impracticable. 
 
 Now legal for many ivorJcnixn simultanc^vsly to leave 
 their worh. — Moreover, the common law doctrine (if it ever 
 
 1 38 & 39 Vic. c. 86, § 7. ^ 33 & 39 Yiq. c. 8G, §§ 7, 'J, 12, 13 ; 
 11 & 12 Vic. c. 43, § 12.
 
 CH. I.] STRIKES BY WORKMEN. 223 
 
 existed in so general a form), that an agreement of two or 
 more to do what eacli could do individually without Leing 
 indictable, has been abrogated by the same statute to this 
 extent, that that doctrine no longer applies to acts relating 
 to trade disputes. The statute enacts that an agreement or 
 combination by two or more persons to do or procure to be 
 done any act in contemplation or furtherance of a trade 
 dispute between employers and workmen shall not be 
 indictable as a conspiracy, if such act committed by one 
 ])erson would not be punishable as a crime.^ It was justly 
 thought an anomaly that an act which one could do with 
 impunity, or, at least, which was at most only actionable 
 when so done by him, should become indictable merely 
 from the accident that two or more joined in doing the 
 same thing at the same time. That anomaly, if it ever in 
 reality existed, has now been removed to the extent already 
 mentioned, namely, in relation to a trade dispute, this last 
 being the subject-matter that most usually gives rise to 
 the offence and the difficulty. But where two or more 
 agree to do an actionable wrong in relation to other 
 matters than trade disputes, the common law, as above 
 stated, remains unaffected on that point. The statute 
 accordingly seems to make lawful, or at least to exempt 
 from any punishment, the act of two or more persons, 
 who, for the purpose of raising wages, simultaneously stop 
 work at one time, and under circumstances, however 
 injurious to the master. One or two exceptions, how- 
 ever exist to this unlimited right to strike. It is provided 
 that when the work is the supply of gas or water to a 
 town or district, and the breach of contract will endanaer 
 human life, or cause serious bodily injury, or expose 
 valuable property to destruction or to serious injury, then 
 the right to strike shall not be protected under this act 
 to the extent thus described.- 
 
 These exceptions to the general freedom of influencing 
 wages, like other matters, through tlie medium of a sudden 
 breach of contract, have been introduced for the protection 
 of the public, who, if not so protected, might in the cases 
 
 ' 38 & 39 Vic. c. 8G, § 3. A crime means an offence eitlier intlict- 
 rble or punishable in a smnmary manner, so as to subject the 
 offender to imprisonment absolutely or as an alternative ior some 
 other punishment. =* 38' & 39 Vic. c. 86, §§ 4, 5.
 
 224 OF THE SECURITY OF THE PERSON. [ch. i. 
 
 excepted be incommoded to an incalculable extent. While 
 the contending interests are striving to produce some 
 change in each other's resolution and stand at bay, and 
 the product of their joint capital and labour no longer 
 flows out for the general advantage, it would only be 
 inflicting wanton mischief on innocent third parties if a 
 limit were not put to the general right in these excepted 
 and urgent cases last mentioned. 
 
 Tumultuous asscmUics. — Having now treated of various 
 forms of apprehended injuries and threats, which proceed 
 from one individual towards anotlier, there are still some 
 apprehended injuries of the same class which equally 
 strike terror into the individual, but yet do not proceed 
 directly and intentionally from one to another. They 
 proceed rather from a multitude of persons, who profess to 
 be en^an-ed in some common purpose pointing to another 
 direction. Such are unlawful and tumultuous assemblies, 
 riots, routs, and affrays, which are not directly aimed at 
 any one of the bystanders, and yet they tend more or less 
 inevitably to bring the same kind of intimidation or terror 
 to bear upon him "as if they were. The injury and inter- 
 ference to one or more individuals is the same, but those 
 en<Taged in the proceeding, being intent on another object, 
 brmo- about their evil effects in a somewhat more circuitous 
 way.'' The peaceably disposed citizen is, however, equally 
 wounded and made uneasy in the enjoyment of his 
 
 security. 
 
 Thouf^h the widest toleration is now allowed by the law 
 to the meeting of citizens to discuss and deliberate on 
 affairs in which they take an interest, yet there may be 
 large meetings held with a view to intimidate particular 
 perlons or classes, and to coerce the latter into doing some- 
 thing which otherwise is not likely to be done. Under the 
 latter class of assemblies may be ranked all attempts by 
 muliitudes to coerce the crown, or the parliament, or the 
 '•■overnment, and which are more properly treated either 
 as oflences against the legislature, or the executive govern- 
 ment, or offences which consist in an unlawful ''xcrcise of 
 the liberty of thought and speech. Thus, a meeting has 
 been deemed unlawful which affected to be a convention 
 to discuss and entertain propositions relating to the luiblic 
 government of the country, for this was said to tend
 
 en. I.] UNLAWFUL ASSEMBLY. 225 
 
 directly to supersede the form of <^overnnient already con- 
 stituted. ^ The subject of unlawful meetings, so far as these 
 are seditious and tend to interfere with government, more 
 properly belongs, partly to the division of " government," 
 and partly to that division of the law entitled "security 
 of thought and speech," which will be treated of hereafter. 
 There may, however, be designs entertained by large 
 meetings of persons besides coercing the executive govern- 
 ment, and these may have the effect of terrifying individuals 
 who are bystanders and disturbing seriously their occu- 
 pations. Such meetings are equally condemned by the 
 law, and are commonly called unlawful assemblies, routs, 
 and riots. 
 
 Unlawful assemhly didinguishcd from riot, rout, afray. 
 — What distinguishes an unlawful assembly from a riot 
 and a rout is the extent to which the common object has 
 been carried out. If the common purpose has not gone 
 further than the mere tumultuous assembling together, and 
 rests only in intention, it is an unlawful assembl}^ If 
 some further intermediate step, though not yet amounting 
 to an overt act, has been taken, as, for example, the move- 
 ment of the crowd towards the intended scene of operations 
 has begun, but still no further overt act has been actually 
 done, it is in that stage called a rout. And, finally, if some 
 overt act has begun towards the carrying out of the purpose, 
 and the design is in course of execution, it is then called 
 a riot. There are thus three degi-ees of this unlawful 
 meeting — an unlawful assembly — a rout — and a riot — each 
 of which must be noticed. Again, the mutual confedera- 
 tion and agreenient in one design is that which distinguishes 
 a riot from an affray, ibr when a large crowd is collected 
 and one or two suddenly quarrel and fight, this amounts 
 only to an affray between those immediately engaged, and 
 does not necessarily implicate the rest of the bystanders. 
 An affray thus differs from a riot in the want of a pre- 
 meditated and common design,- And .while several 
 persons must concur in order to constitute a riot, yet 
 the mere incitement to a riot is of itself an indictable 
 misdemeanour.^ 
 
 ibOit^.— Before proceeding more particularly to state the 
 
 1 E. V Fnrsey, 6 C. & P. 8L ^ i Hawk. P. C. c. 05, § 3. ^ i B^ys, 
 Cr. 382 (4th ed.). 
 
 VOL. I. Q
 
 226 OF THE SECURITY OF THE PERSON. [ch. I. 
 
 law affecting riots it may be well to dispose of that lower 
 degree of the same thing called a rout, which is seldom 
 met with as a specific offence. It is only an inchoate riot, 
 heing not crowned with any overt act developing the 
 common purpose. It is deemed, however, in this incipient 
 stage a specific offence, and punished as a misdemeanour 
 with fine and imprisonment ; and security of the peace 
 may also be imposed on the conviction of those who take 
 
 part in it.^ 
 
 How riot distinguished from high treason. — The purpose 
 or bond of union in cases of unlawful assembly and riot is 
 sometimes difficult of definition. It has often been said 
 that in order to distinguish riot from high treason, or what 
 once was deemed high treason, it is necessary to see if this 
 purpose is or is not some general and universal redress of 
 rights. For example, it is said to be no longer a riot, if 
 the oliject be to demolish all the bawdy-houses or all the 
 popish chapels, or all the incisures in the kingdom, since 
 this strikes at the foundation ef law and government ; but 
 it must be of more private and local nature, such, for 
 example, as to demolish the fences of some particular 
 inclosure, to gain possession of some parish tenement, the 
 interest in wliich is claimed only by some individuals or 
 local community. And hence the purpose of a riot is said 
 to be one of a private or local nature only.^ Kelyng, C. J., 
 indeed ruled that a mob of apprentices, who went and 
 pulled down some brothels, were guilty of high treason, 
 because they had a captain, and an ensign, and weapons. He 
 said further that to go about any public reformation is high 
 treason, for " if every man may reform what he will, who 
 is safe ? " And he added, " that rebellion first began under 
 the pretence of religion and the law, and the devil hath 
 always this vizard upon it." But though all the judges 
 a"'recd this was good law, it is noted that Hale, C. B., 
 dTssented and thought it only a misdemeanour.^ It 
 would be difficult in modern times to see the connection 
 between treason and the limited and partial purposes 
 which have sometiincs been identified on such principles, 
 as those stated by Kelyng,' with that imperial offence. 
 
 ' 1 Yin Al)r. Riots; 1 Hawk. c. C5, § 12 ; 1 Hawk. c. 05, § 8. 
 ■ 2 1 Hawk. c. 05, § 0. =^ G St. I'r, 879.
 
 en. I.] RIOT, 227 
 
 Hiot as rcrjards the mutual liahility of tliose engaged in 
 it. — A riot is when three or more persons assemble together 
 of their own authority with an intent mutually to assist 
 each other, and to resist all those who should oppose them, 
 and with a further intent to break the peace ; and this 
 likewise for a private purpose.^ Three persons are the 
 smallest number who must be engaged in this offence, for 
 much of the criminality consists in the likeliliood of 
 danger arising out of mere numbers so acting. And for 
 that reason it is that women as well as children above the 
 age of fourteen, if mixing in the crowd, will incur the same 
 liabilities as adult males, unless their presence can be 
 otherwise explained.- It is a species of offence in which 
 persons may become involved almost without knowledge 
 or premeditation. Hence whenever a person joins a crowd, 
 which is acting riotously, he must take care to get out of 
 it with the least delay, as his presence is presumably an 
 encouragement, and at least goes to swell the number and 
 inspire terror in third parties ; and so the burden of proof is 
 thrown on him, who is found in the crowd, to prove that 
 he was an involuntary associate. 
 
 One of the mles of law, therefore, is, that all who are 
 members of a riotous crowd are principals, and the wearing 
 of a badge or the making of signs is good prhnd facie 
 evidence of being animated by the common design, and 
 what each does, though perhaps on the spur of the moment, 
 is deemed impliedly authorised by all the rest. An ambu- 
 latory partnershi]) for the time being binds all together in 
 one common liability, and makes each answerable for the 
 wrongful acts and mischiefs done by all the others.^ The 
 general characteristic of guilty participation in a riot thus 
 being, that many act in furtherance of the common object, 
 if there are riotous speeches made, the speakers are guilty 
 of what follows, though they may have retired before the 
 actual disturbance begins.* And for the like reason, he, 
 who joins at the latest stage, cannot escape liability by 
 savin" that he was no sharer in the original desisfu.^ 
 
 1 Per Heath, J.. 2G St. Tr. .^)23. 2 2 Salk. 594 ; 1 L. Rami. 484 ; 
 
 1 Hawk. c. 65, § 14 : 1 Hale, P. C. 20. » Clifford r Brandon, 
 
 2 CnniTJ. 3G7 ; E. v Eoyce, 4 Burr. 2073 ; R v BiHins^liam, 2 C. & 
 P. 234'; R. V Perkins, 4 C. & P. 537. 4 R. v Shnrpe. 3 Cox, C. Q 
 288. 5 R. V Grampound, 2 L. Raj-m. 965 : Anon. 6 Mod. 43. 
 
 Q 2
 
 228 OF THE SECUEITY OF THE PERSON. fen. r. 
 
 Riot as to its origin and common 'purpose. — Tlie unlaw- 
 fulness of a riot may be manifested in different ways. 
 The avowed object may be unlawful in the first instance, 
 or an object, in itself lawful, may be sought to be carried 
 out by unlawful means ; or an object may be in the first 
 instance lawful, but in the course of the proceedings this 
 object may change iuto something unlawful. ISTumbers of 
 people often meet, under a common sense of injustice, to 
 redress an outrage on what they suppose to be their rights, 
 and in the heat of the moment are carried much further 
 than they intended. Hence the origin, nature, and 
 development of the motives and actions require to be 
 scrutinised, before the respective criminality of parties 
 can be rightly ascertained. While an essential ingredient in 
 the offence of unlawful assault and riot is the apprehension 
 or terror caused to third parties, it is not necessary that 
 the persons engaged in it should actually commit a breach 
 of the peace ; it is enough if they cause, not the nervous 
 and weakminded, but one or more persons possessed of 
 reasonable firmness, to apprehend that a breach of the 
 peace is likely to be committed and is imminent.^ And 
 if even one person is reasonably alarmed, this is all that 
 is needed to complete this ingredient of the oftence.^ 
 "Where the persons assemble with the view not of doing 
 an unlawful overt act, but merely to display their numbers 
 and power, the offence, if anything, is rather that of 
 an unlawful assembly than of a riot, as, for example^ 
 where numbers of people ride about with weapons in an 
 imusual manner.^ On the otlier hand, if the deoree of 
 intimidation is not sufficient to constitute a riot, the 
 meeting may be unlawful from the mere fact of the object 
 being to do a lawful act with imlawful and unnecessary 
 violence, in whicli case the offence may be an unlawful 
 assembly.* And where numbers of persons meet for a 
 lawful purpose, and their purpose changes into an unlaw- 
 ful one, those who take part in the latter purpose are in the 
 same position of guilt, as if they had originally entertained 
 such purpose. But that kind of common purpose which 
 distinguishes a riot is not to be confounded witli a mere 
 
 1 Per Mansjield C. J., Clifford v Bnauhm, 2 Camp. 3G7. 2 r ^ 
 Phillips, 2 Mood. C. C. 252. » i{_ „ J'„oh/Holt cas. G35. * B. v 
 Stroude, 2 Show. 150 ; K. v Cox, 4 C. & P. 538.
 
 CH. I.] ASSEMBLING FRIENDS FOR SELF-DEFENCE. 229 
 
 quarrel or fight between the parties themselves, in which 
 case there may be an affray, though no riot.'- 
 
 The more frequent origin of a riot is the general senti- 
 ment, tliat a ]HTl)lic right has been invaded and requires 
 to be vindicated by the force of numbers and a species of 
 physical intimidation. Thus it is where many people have 
 been excluded from the exercise of a right of common and 
 ])ull down fences to a greater extent than is necessary to 
 exercise their right,^ or where they join in some diversion 
 which may be carried on in a tumultuous and violent 
 manner, and in a public place, as playing at foot-ball in the 
 })ublic street."^ And to encourage a premeditated prize- 
 fight, is also an origin of riot.'* On one occasion, where 
 many persons, offended at a rise of prices in a theatre, went 
 purposely to the pit and hissed and hooted, rung bells and 
 blew^ horns, so as to drown the voices of the actors and 
 make the performance inaudilile, it was held they were all 
 guilty of a riot, though no personal violence was actually 
 done to any one individual, and no injury done to the 
 house.^ And when a lion-fight took place at Warwick in 
 1H2G, the Attorney-General (Copley) told the House of 
 Commons, that it was a riotous and illegal assembly, and 
 might have been dispersed by the magistracy.^ 
 
 How far one may assemble friends for sdf -defence.- — But 
 tliough the carrying out even of a legal object with the aid 
 of numbers in a tunuiltuous manner makes the offence of 
 riot, it does not follow that in no case whatever is it legal 
 for one person to be assisted by several persons. On the 
 contrary, there may be situations in which a person may 
 be aided by his friends or neighbours in doing something 
 even in public, which makes their conduct punishalde 
 neither as a riotous nor as an unlawful assemblv. And 
 here arises a distinction between one's house and one's 
 fields. Tliough it would be unlawful to assemble numbers 
 to defend the i^ossession of a close or field claimed by one 
 of them, still, if it is to defend the peaceable possession of 
 a house, this will be deemed justifiable, owing to the greater 
 
 1 E. V Ellis, '1 Salk. 505 ; 1 Hawk. c. G5 ; R. r Corp. of Gram- 
 pound, 2 L. Raym. 9G5. 2 r_ „ Wyvill, 7 I\Iod. 286. » 1 Hawk, 
 c. 65, § 5. 4 R. V Billingham, 4 D. & R. 127 ; 2 C. & P. 234 ; 
 R. V Perkins, 4 C. & P. 537. ^ Cliftord v Brandon, 2 Camp. 358. 
 ^ 14 Pari. Deb. (2nd scr.) 651.
 
 230 OF THE SECURITY OF THE PERSON. [cu. i. 
 
 degree of protection thrown round the house or castle, — 
 wliich is deemed a sanctuary, — than round the lands and 
 fields where no one dwells.^ In other cases it depends 
 chiefly on the peaceable manner in which the people 
 assemble and act, whether the crowd is riotous or not, for 
 if by their conduct they neither break the peace nor cause 
 any reasonable apprehension of so doing, then their conduct 
 is not illegal, even though the purpose in view is wrongful. 
 As when a man claiming a log of wood in another's field, 
 goes with his friends to remove it :^ or where a wear across a 
 river is said to injure the local public in their rights, they 
 may join and with crows of iron and spades remove it.^ 
 In such cases, however, it is an important ingredient, that 
 no more people should assemble than are reasonably neces- 
 sary to do the contemplated act. And in all such cases 
 it will be for a jury to decide, whether the circumstances 
 of the assembling transgressed the line of peaceable be- 
 haviour, and reasonably inspired terror and apprehension 
 in the minds of the public in the neighbourhood ; and to 
 ascertain this result the place and time of meeting and 
 the nature of the speeches must all be considered.* 
 
 Riots to demolish huildings, vMchincry, &c. — Though the 
 offence of riot or unlawful assembly is at common law 
 only a misdemeanour, the legislature has singled out from 
 the ordinary cases some attended with peculiar mischief 
 as well as recklessness or malignity in the participators, 
 namely, where the common object is to demolish braidings 
 or machinery. This class of riots is made felony, and 
 punished with penal servitude for life, or two years 
 imprisonment.^ And if the rioters injure and damage 
 without demolishing, the offence is misdemeanour, punish- 
 able with seven years penal servitude.^ 
 
 1 Per Heath, J., R. v Baiio-o,-, 2G St. Tr. 52G. 2 ix ^ p„irh, 
 6 Mod. 141. 3 Dalton, c. 137. " R. v Vincent, 9 C. & P. 91 ; 
 
 R. V Neale, ib. 431. 
 
 5 24 & 25 Vic. c. 97, § 11 ; 27 & 28 Vic. c. 47, § 2. The punishment 
 is penal servitude for lile, or for not less than five years, or imprison- 
 ment for not less than two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 « 24 & 25 Vic. c. 97, § 12 ; 27 & 2 Vic. c. 47, § 2. This punishment is 
 penal servitude not exceeding^ seven, and not less than live, years, 
 or imprisonment not exceeding two years, with or without hard 
 labour, A variety of buildings are enumerated in the statute, as
 
 cu. I.] STOPPING A RIOT. 231 
 
 In applying these enactments, it has been held that a 
 person present and aiding at part of the mischief, such as 
 the burning of a house, though not at the firing of it, is 
 equally guilty,^ And where the mob attack and injure 
 a house, chiefly as a means of getting at and seizing some 
 obnoxious person inside, they may be guilty nevertheless 
 of this statutory offence, especially if the evidence leaves 
 it doubtful whether their object was not twofold,- 
 
 Individuals stopjnncj a riot. — Tlie duty of individuals to 
 put a stop to a riot was thus expounded by Lord Mansfield. 
 "Every individual in his private capacity may lawfully inter- 
 fere to suppress a riot : much more to prevent acts of felony, 
 treason, and rebellion. Not only is he authorised to inter- 
 fere for such a purpose, but it is his duty to do so ; and if 
 called upon by a magistrate, he is punishable in case of 
 refusal. What any single individual may lawfully do, for 
 the prevention of crime and preservation of the public 
 peace, may be done by any number assembled to perform 
 their duty as good citizens. It is the peculiar business of 
 all constables to apprehend rioters^ to endeavour to disperse 
 all ivalawful assemblies, and in case of resistance to attack, 
 wound, nay kill those who continue to resist, taking care 
 not to commit imnecessary violence or to abuse the power 
 legally vested in them." ^ And another learned judge near 
 our own times thus gave his version of the same rights and 
 duties. By the common law every private person may 
 lawfully endeavour of his own authority and without any 
 warrant or sanction of the magistrate to suppress a riot by 
 every means in his power. He may disperse or assist in 
 dispersing those who are assembled ; he may stay those 
 who are engaged in it from executing their purpose ; he may 
 stop and prevent others whom he shall see coming up from 
 joining the rest ; and not only has he the authority, but he 
 is bound under pain of fine and impiisonment, when called 
 upon by the magistrate, to do his utmost in assisting him 
 to sujipress any tumultuous assembly. If the riot be 
 general and dangerous, he may arm liimself against the 
 evildoers to keep the peace. It is undoubtedly more prudent, 
 
 included in this special protection, sucli as churches, chapels, houses, 
 shops, mills, granaries, county buildings, machinery, mines, &c. 
 
 1 K. V Simpson, Car. & ]V[. G69. 2 k_ ^ Pncc, 5 C. & P. 510 ; 
 K. V Batt, G C. & P. 329. ^ -21 Pari. Hist. 088.
 
 232 OF THE SECURITY OF THE PERSON. [cH. i. 
 
 however, for a private person not to act independently, 
 but to act in combination with and in assistance of the 
 magistrate, sheriff, or constable, for in that way his services 
 are more likely to be effective, and he will have the benefit 
 of the judgment and observations of others also. Yet 
 • whatever is honestly done by him in suppressing the 
 assembly will he supported and justified by the common 
 law. And whether he is a private individual or a soldier, 
 his duty is the same in this respect, for a soldier does not 
 cease to be a citiEen, though he is more likely to associate 
 himself closely, as he ought to do, with those in authority, 
 and act under their specific instructions. An honest zeal 
 in both according to their separate ability is a duty, and 
 will be a sufficient protection in case of any accidental 
 mistake they may commit.^ 
 
 Bemedy against rioters. — The mode of punishing rioters 
 is usually by indicting some of the ringleaders, and where 
 the expense of trying so many is to be avoided, some who are 
 joined in the indictment may enter into a rule to confess 
 judgment if their fellows are convicted.^ The essential 
 thing to prove on an indictment for riot is the common 
 j)urpo.se, and that terror was thereby caused to the queen's 
 subjects.^ The verdict, in order to stand, must be a verdict of 
 guilty against at least three persons ; but if a verdict is found 
 against two, and others included in the indictment had died, 
 and so were not tried, the verdict will be held good, because 
 the two will be presumed to have been guilty with others 
 not tried.* The sentence for a riot, at common law, is fine 
 and imprisonment, and the court may require security of 
 the peace, which would be forfeitetl if the party again 
 formed part of a meeting which the constable had to sup- 
 press.^ And the court may add hard labour to the impri- 
 sonment.*' The costs of prosecutor and witnesses may in 
 such cases l)e ordered by the court to be paid by the county." 
 
 Though the usual mode of proceeding against riotirs is 
 by indictment, yet in some of the cases, especially those 
 connected with the administration of justice, or the election 
 
 1 Per Thulal, C. J., R. v Pinney, 5 C. & P. 2G1. "- Anon. ?> Salk. 
 317 ; R. V Middleniore, G Mod. 212; Lofft, 44. =» R. v Hut-hes, 4 C. 
 & P., 373. ■» R. V Scott, 3 Purr. 12r)2 ; 2 W. Bl. 2i)l, 350 ; 
 
 2 Hawk. P. C. c. 47, § 8. ^ k. v Blissett, 1 Mod. 13. « 3 Geo. IV. 
 c. 114. 77 Geo. IV. c. 04, § 23.
 
 CH. I.] ANCIENT MODE OF STOPPING RIOTS. 2S3 
 
 of members of parliament, the Queen's Bench Divisoii \v\\\ 
 allow a criminal information, hut, this being a mere variation 
 in procedure, tlie punishment is the same in the end^ 
 
 Early legislation as to putting down riots. — Though the 
 above is the mode of suppressing and punishing riots at 
 common law, there have been various changes in the treat- 
 ment of this offence effected by statute. An offence like 
 riot, which strikes at the root of all good government, and 
 all security in ordinary employments, has given nnu-.h 
 trouble to the legislature, as may be supposed, and it is 
 after considerable variety of experiments that a somewhat 
 settled mode of suppressing riots has been adopted and 
 acted on. We may, not without proht, look back a few 
 centuries at the way in which our ancestors sought to ])ut 
 down this most pestilent of social disorders. ISoon after 
 the first institution of justices of the peace by Edward III. 
 — a body of gratuitous judges, said to be .peculiar to the 
 United Kingdom,- — it was seen that their services would 
 be, above all, most effective in cases of riot, and indeed such 
 a contingency was exactly that which they are peculiarly 
 created to deal with. The statute of 34 Edward TIL cap. 1, 
 expressly empowered justices to restrain and arrest, pursue 
 and chastise rioters, and authorise others to arrest them. 
 And this statute was held to authorise each individual 
 justice to arrest, though not to try and punish the rioters.^ 
 Statutes of liichard 1 1 .went furthei', and expressly authorised 
 tlie sheriffs on attaining knowledge of a riot to go with the 
 strength of the county, and put oH'enders in prison till due 
 execution of the law be made. And all lords and other 
 liege people of tlie realm were to attend with all their 
 strength and power upon these sheriffs and ministers.* 
 Another statute forbade persons to ride armed, night or 
 day, or to wear a skull of iron or other armour.^ Again 
 a statute of Ileury IV., still more eiuphatic, made it the 
 duty of two or more justices, with the sheriff, to arrest 
 rioters and draw up a record or certificate of llie iacts, 
 which was to be equivalent to a presentment of a jury. 
 All persons able to travel were bound under pain of line 
 
 1 R. V Kynaston, 2 Burr. 378 ; R. v Hunt, 1 L. Ken. 108 ; R. v 
 
 Iiio-ram, 2 Snlk. 593 ; R. v Tempest, T. Rayni. 336 ; R. v Piigli, G 
 
 Mod. 140. 2 1 Camp. Chrs. 272. •■'8 Co. 121 ; Dalt. c. 22. 
 
 4 15 Ricl). II. c. 2 ; 17 Rich. II. c. 8. » 20 Ricli II. c. 1.
 
 234 OF THE SECURITY OF THE PERSON. [cii. i. 
 
 and imprisonment, to join and assist the justices and 
 sheriff. And the same statute made it the special duty of 
 the justices d^velling nearest to the scene of riot (though 
 other justices were not thereby discharged from a like duty 
 if none of them had taken the duty upon him) to put the 
 statute in force, under a penalty of £100.^ And by still 
 another confirming statute, if the justices and sheriffs iailed 
 in their duty, a party grieved might procure them to be 
 punished for their neglect.- And a statute of Mary made 
 it felony for twelve persons lo assemble to alter the laws, or 
 to break fences or fenceways, if they did not disperse in 
 one hour after proclamation.^ 
 
 Under these statutes, which are mostly unrepealed, it is 
 an indictable offence for any person of Avhatever degree to 
 refuse, after reasonable warning, to assist the justices and 
 sheriffs in suppressing riots, by arresting and lodging in 
 ■prison the rioters ; though the lame, and the halt, and the 
 blind, and it is added, women, and clergymen, and infants 
 under fifteen have been held by the courts to be impliedly 
 excused from this duty.* And on the same account such 
 persons were entitled to carry arms, and were protected 
 against liability for arrests or assaults committed in further- 
 ance of the duty. The same statutes have made it incum- 
 bent on all the justices of the county to see these powers 
 enforced, and though justices are not excused merely be- 
 cause those who reside nearest the scene of riot have not 
 done their duty, yet whenever some justices have taken on 
 them the duty, the rest are then excused from interfering,^ 
 though they require to be vigilant to see that the machinery 
 shall in no case break down for want, at any moment, of 
 acting justices. The chief responsibility in cases of riot, 
 it will thus be seen, lies not with private individuals, but 
 with justices of the peace, for they are to set in motion the 
 machinery for restoring order and to judge when it will 
 be prudent to resort to force, and if need be, to deadly 
 weapons, if no other means suffice. Tliey may act not only 
 on their own view of the situation, but also on the credible 
 information of othei'S. lUit while these ancient statutes 
 give ample power and encouragement to justices, and though 
 
 1 13 Henry IV. c. 7 ; It) Htiiry VII. c. 13. 2 2 Henry V. c. S. 
 3 1 Mary, st. 2, c. 12 ; 1 Eliz. c. 15. « 1 Hawk. c. 05. •' 1 H;uvl<. 
 P. C. b. i. ch. 65, § 4(3.
 
 CH. I.] READING THE IJIGT ACT. 235 
 
 the Star Chamber was peculiarly zealous in assisting to 
 punish riots/ it was found that some in)provement was 
 needed in the machinery for arresting and suppressing so 
 dangerous an oifence, and at length, in 1714, a new act, 
 since called the Eiot Act,^ was passed, which still governs 
 the subject, and requires particular notice.^ 
 
 Reading the riot ad. — The riot act does not deal with 
 every kind of riot, but singles out those in which twelve 
 or more persons join, and its chief object is to enable the 
 justices to take early steps and to administer a solemn 
 warning. If that warning is neglected, or deliberately set 
 at naught, the rioters incur serious guilt, and are subjected 
 to very severe and summary treatment. This riot act was 
 deemed so important, that it was directed to be read openly 
 at ever}'- quarter sessions as a standing order to be known 
 by heart by its chief administrators.^ Much turns upon 
 the exact lancjuai^e of the statute. If twelve or more 
 persons be assembled unlawfully, riotously, and tumultu- 
 ously, and, being commanded by proclamation by one or 
 more justices or sheriffs or mayor, to disperse peaceably, 
 shall nevertheless continue together riotously for the space 
 of an hour, then they become from that moment guilty of 
 felony, and it is equally a felony to wilfully obstruct those 
 who make this proclamation.^ The punishment, which 
 was declared in 171-i to be capital, was in ]837 reduced 
 to penal servitude for life, or for not less than fifteen years, 
 or imprisonment for three years with hard labour, together 
 with solitary confinement. This confinement, however, can- 
 not exceed three months in the year, or more than one month 
 at a time.^ And the prosecution, being severe, must be com- 
 menced within twelve months after the offence is committed.^ 
 
 The riot act, though useful and often necessary as a 
 means of more speedily suppressing riots and overawing 
 the rioters, is by no means an essential towards this result. 
 It enhances the guilt of the parties who disobey the law 
 after its provisions have been brought to bear on the 
 situation, but if it is not resorted to, the riot, nevertheless, 
 still remains punishable under the common law and the 
 earlier statutes." This proclamation enjoined by the riot 
 
 1 Hndsoi-, Star Ch. 82. 2 j Qco. I. st. 2, c. 5. 3 i Qeo. I. st. 2. 
 c. 5, § 7. M Geo. I. st. 2, c. 5. ^ 1 Vic. c. Gl. « i Qeo. I. st. 2, 
 c. 5, § 8. 7 R. ^ Fursey, 6 C. «& P. 81.
 
 236 OF THE SECURITY OF THE PERSON. [ch. i. 
 
 act, which is directed to be made in a loud voice as near 
 the rioters as can safely be done, is a leading feature in 
 the machinery. It is set forth in the statute, and is as 
 follows : — " Our sovereign lord the kin^ char[j;eth and 
 commandeth all persons being assembled immediately 
 to disperse themselves, and peaceably to depart to their 
 habitations, or to their lawful business, upon the pains con- 
 tained in the act of King George for preventing tumults 
 and riotous assemblies. God save the King." Every 
 justice, sheriff, mayor, or bailiff is required on notice of 
 such a riot to resort to the scene and cause such a 
 proclamation to be made.^ 
 
 Diet// of justices after 2^"i^oclamatioii of riot. — "When the 
 proclamation is made, or, as it is commonly said, when the 
 riot act has been read, the justices and sheriffs and peace 
 officers may command all her majesty's subjects of age 
 and ability to render active assistance in seizing and 
 apprehending the rioters. And it is expressly added that 
 if the rioters shall happen to be killed, maimed, or hurt in 
 the efforts to disperse and seize them, those using such 
 efforts shall be free from all blame whatever.- If any of 
 the rioters attempt to escape after the hour limited has 
 expired, they are liable to be seized by any person and 
 carried before a justice of the peace.-'' And even though 
 a person be not present during the whole of this hour of 
 grace, he will come within the penalties of the statute if 
 found during part of the hour.* Moreover, if the riot act 
 be read more than once, the second reading does not super- 
 sede the first, and the computation of time must be taken 
 from the earliest date.^ 
 
 In applying this important statute, it is to be borne in 
 mind that it is not left to the mere discretion of the justice 
 to decide conclusively that a meeting is a riotous assembly ; 
 all that is meant, is, that, if it is a riotous assembly, and 
 he make the proclamation, then the offence, instead of 
 being a misdemeanour, will be turned into a felony.*' And 
 hence in any imlictment it is necessary to prove that the 
 
 • 1 Geo. I. Rt. 2, c. 5, § 2. 2 1 g^o. I. st. 2, c. 5, § 3. » 1 Geo. I. 
 at. 2, c. 5, § ?). ■' U. V -faiiios, 1 Riiss. Or. 277. ■' R. v A¥oolcock, 
 5 C. &. P. iJlG. It lius been said that if the words " God save 
 the Queen," are omitted, the proclanuition wilt be insufllcient. — R. v 
 Cliild, 4 C. & P. 442 ; .scd qu-n-e. >> R. v James, 5 C. & P. ir;4.
 
 cu. I.] DUTY OF JUSTICES IN RIOTS. 237 
 
 assembly was, in point of fact, of a riotous character, and 
 justified the justice in his proclamation. It is part of the 
 ordinary duty of all justices of the peace under their 
 commission to put down an unlawful assembly and a riot. 
 In this dilHcult conjuncture their judgment, sagacity, and 
 firmness are put to a severe trial, for they are bound to hit 
 the mark — not to hesitate when the moment of action has 
 arrived, not to go a hairsbreadth beyond the severity 
 needful to stamp out the fire. And hence magistrates are 
 sometimes indicted for breach of duty in not suppressing 
 a riot, as was the case of the lord mayor of London in 
 1780 and the mayor of Bristol in 1832.^ In urgent cases 
 the military may act without directions from the civil 
 magistrates ; and in the Gordon riots in 1780, when the 
 king issued a proclamation and directed the military to dis- 
 perse the rioters, and in consequence nearly 300 lives were 
 lost, and half of that number more were wounded, it was 
 held by Lord Mansfield that as the insurgents were engaged 
 in overt acts of tieason, felony, and riot, it was the duty of 
 every subject of his majesty, and not less of soldiers than 
 of other citizens, to resist them.^ And I;Ord Mansfield 
 used to say that he was himself to blame for not having 
 on that occasion directed force to be repelled by force, 
 it being the highest humanity to check the infancy of 
 tunmlts.^ 
 
 One of the most delicate duties to which a justice of the 
 peace has to address himself in the sudden excitement of 
 a riot is when to resort to the aid of military force. A 
 jealousy invariably dogs his movements at this critical 
 point. If he is a moment too early in bringing this last 
 resort to bear, he is too often stigmatised as tyrannical or 
 brutal ; if he is a moment too late, he is branded as 
 imbecile and cowardly. Between these two extremes 
 hundreds of critical eyes watch every step, and are seldom 
 slow to mark and record every error in judgment. The 
 duty of the justices of the peace on hearing of a riot is to 
 meet and concert measures. Their first power is to swear 
 in special constables under the statute of 1 & 2 William IV., 
 c. 41 ; and if these be insufficient, they may request the 
 
 1 R. V Kennett, 5 C. & P. 282 n. ; R. v Piniiev, 3 P.. & Ad. 947 ; 
 E. V Neale, 9 C. & P. 431. ^ 21 Pari. Hist. G9(J, 1305. ^ Ersk. 
 Speeches.
 
 238 OF THE SECURITY OF THE PERSON. [cH. i. 
 
 nearest military force to come to their assistance.^ As to 
 the further stages, it is difficult to say more than that the 
 duty of the justices is to act with discretion and ordinary 
 firmness in the circumstances, both in warninrr the 
 peaceable and subduing the violent ; and if they can be 
 shown to have done this, they are free from blame, how- 
 ever unsuccessful in their efforts to subdue the disturbance.^ 
 It is not at all necessary that they should in person take 
 any active part in using force. 
 
 Dutii and discretion in itsing military force in riots. — 
 Ever since the passing of the liiot Act great jealousy has 
 been shown by the people as to the mterference of the 
 military, and as the reign of severity often begins with 
 this last extremity in the proceedings, it has "been too 
 often the habit, even of legislators, to denounce without 
 thought this step as if it were an invasion of popular 
 rights and an affront upon all the peaceably inclined. But 
 several great authorities have from time to time corrected 
 this delusion,^ and shown that military assistance is a 
 
 1 Burdett V Colinan, 14 East, 164 ; 3 Stark. 92. 
 
 2 R. V Piniiey, 3 B. & Ad. 947 ; 3 Stark. 105. 
 
 3 liORD Hardwicke : " Our soldiers are our fellow-citizens. Tliey 
 do not cease to be so by putting on a red coat and carrying a musket. 
 It is well known that magistrates have a power to call any subject of 
 the king to their assistance to preserve the peace and to execute 
 the process of tlie law. The subject who neglects such a call is 
 liable to be indicted, and being convicted, to be fined and im- 
 prisoned for his offence. Why, then, may not the civil magistrate 
 call soldiers to his assistance as well as other men ? While the kino-'g 
 troops act under the directions of the magistrate we are as much 
 under civil govf'rnment as if there were not a soldier in the island 
 of Great Britain. The calling in of these armed citizens often 
 saves the effusion of innocent blood, and preserves the dominion 
 of the law."— 9 Pari Hist. 1294. 
 
 Lord Loughborough : " It has been imagined, because the law 
 allows an hour for the dispersion of a mob to whom the riot act 
 has been read by the magistrate the better to support tlie civil 
 authority, that during this period of time the magistracy are disarmed, 
 and the king's subjects, whose duty it is at all times to suppress riots, 
 are to remain qinet and passive. No such meaning was within the 
 the view of the legislatui-e ; nor does the construction of the act 
 warrant any such notion. Magistrates are left in jjoasession of those 
 powers, which the law had given them before ; if the mob collec- 
 tively, or a part of it, or any individual within and before the 
 expiration of that hour attempts or begins to perpetrate an outrage 
 amounting to felony, it is the dul}' of all present, of whatever
 
 cii.i.] CALLING IN THE MILITARY IN RIOTS. 239 
 
 natural step in the development of all riotous assemblies, 
 and instead of aggravating the evil, seldom fails to cure it 
 when judiciously handled. When society has been re- 
 solved into first principles, a resort to the strongest and 
 sliarpest weapon of self-defence is dictated by tlie voice of 
 nature itself. Soldiers are merely citizens, wiio by tlicir 
 profession are trained to act in unison, and to bring the 
 maximum of physical force to bear at any critical moment, 
 when ioi-ce is everything. And as all citizens are amenable 
 to the call of the magistrate, it is natural and inevitable 
 that tluey, as the strongest citizens for the moment, should 
 be required in their turn to act, or -be welcomed when they 
 come without being required. Yet they nmst always act 
 on the same principle as all other citizens must act, 
 namely, when they repel force they must repel it by just 
 sufficient force and no more to overcome tlie resistance 
 offered. When that is the rule observed, it can be of no 
 
 description tbeyniay bo, to endeavour, by the most effectual means, 
 to stop tbe mischief and to apprehend the offender." — 21 *S^ 
 Tr. 49.^. 
 
 Lord Mansfield : " Much mischief lias arisen from a misconcep- 
 tion of the riot act, wliich enacts that, after proclamation made tliat 
 persons present at a riotous assembly sludl depart to their homes, 
 tliose who remain tliere above an hour afterwards shall be guilty of 
 felony and liable to suffer death. From this it has been imagined 
 that tlie military cannot act, -whatever crimes may be comnutted in 
 their sight, till an hour after such a proclamation has been made, or, 
 as it is termed, the riot act is read. But the riot act only intro- 
 duces a new offence — remaining an hour after the proclamation — 
 without qualifying any pre-existing law, or abridging the means 
 whicli before existed for preventing or punishing crimes " — 21 Pari. 
 Hist 688. 
 
 TiNDAL, C. J. : " The law acknowledges no distinction belwoon 
 the soldier and the private individual. The soldier is still a citizen, 
 lying under the same obHgation, and invested willi tlie same 
 authority to preserve the peace of the king as any otiier subject. If 
 the one is bound to attend the call of the civil magistrate, so is the 
 other. If the one may interfere for that pur])ose when the occasion 
 demands it without the requisition of the magistrate, so may the other 
 too. If the one may employ arms for that purpose M-lien arms are 
 necessary, the soldier may do the same. Undoubtedly the same 
 exercise ul discretion, which requires the private subject to act in 
 subordination to, and in aid of, the magistrate, rather than upon 
 his own authority, before recourse is had to arms, ought to operate 
 in a still stronger degree with a military force."— Per Tinilal, 
 C. J., R. V Pimiey, 5 C. & P. 2G3.
 
 240 OF THE SECURITY OF THE PERSON. [cii. i. 
 
 consequence Avhat is the weapon used, or how many kinds 
 of weapons of varied strength one after the other, so long 
 as each in succession is not used a moment too soon. 
 
 Remedy for property injured hy rioters. — As riots, over 
 and above the terror they inspire, frequently end in the 
 destruction or injury of private property, and it would be 
 most unjust that such private loss should go witliout 
 compensation, and yet it may be difficult to fix on the 
 party really responsil)le, care has been taken, ever since 
 the Eiot Act of 1714, to provide a remedy sufficient to 
 recoup innocent proprietors ; and the remedy provided is 
 a proceeding against the hundred, if in a county, and 
 against the town or liberty if elsewhere. In other words, 
 the inhabitants of the district have to pay the damage done 
 by this social outbreak. The enactment now providing for 
 recourse in case of riot against the hundred was revised in 
 1827. It specifies chapels, houses, buildings, and ma- 
 chinery, shipwrecks, and other things, and declares that if 
 these shall be 'feloniously demolished or destroyed, wholly 
 or in part, the hundred or such like district shall be liable 
 to yield full compensation to the person damnified, not 
 only for the damage done to the buildings or subjects, but 
 aks') for any damage at the same time done to the fixtures, 
 furniture, or goods in such buildings or erections. The 
 chief qualification is, that the person injured shall witliin 
 seven days after the offence go before a justice of the 
 peace, and state on oath the names of the ofienders, if 
 known, and the other circumstances, and become bound 
 by recognisance to prosecute the offenders when appre- 
 hended.^ If the scene of the riot is in a city, or town, or 
 liberty, not subject to the county rate, a like remedy is 
 obtained against a peace officer of the place, and a rate is 
 then made by him on the inhabitants, so as to make up the 
 simi required.^ In all cases above 30/. damage, the remedy 
 is by action, and this must be commenced within three 
 calendar montlis after the otfence committed. The action is 
 nominally against the chief constable of the district, who is 
 bound to go to two justices of the peace, who in some 
 cases will consent to his suffering judgment to go by 
 ■default. The treasurer of the county ultimately pays the 
 
 1 7 & 8 Geo. IV. c. 31, §i^ 2, 3 ; 2 & 3 Win. IV. c. 72 ; 17 & 18 
 Vic. c. 104, § 477. '^ 7 & 8 Geo. IV. c. 31, § 15.
 
 en. 1.] AFFRAY. 241 
 
 expense in the first instance, and the justices of the peace 
 in general or quarter sessions levy a rate on the inhabit- 
 ants of tlie hundred or district, to reimburse the treasurer 
 and constable.^ 
 
 In cases where the damage done by the rioters is 30/. 
 or less, a written statutory notice of the claim must be 
 given, within seven days after the offence, to the chief con- 
 stable, wdio is to exhibit the same to two justices of the 
 peace. These justices appoint a special jjetty session of 
 all the justices in twenty days thereafter, for the purpose 
 of hearing and determining the claim. When they settle 
 the claim, they make an order on the treasurer of the 
 county or Ijorough fund, and ultimately a rate is made for 
 reimbursement on the inhabitants of the county or town.- 
 In all snch cases, as the statute has given the specific 
 remedy, that remedy must he pursued, and the directions 
 therein contained scrupulously followed. 
 
 In applying these statutes, the compensation given to 
 the individual has been interpreted to mean the expense 
 of replacing the premises in their former state.^ And as a 
 reversioner may be damnified as well as a tenant in pos- 
 session, his claim also is made good.'* And the statute 
 enables the rector, vicar, curate, or chapelwarden to make 
 the claim in respect of any church or chapel injured.^ 
 By this process a somewhat rough kind of justice is done 
 in making all those wdio have property in the locality 
 share the burden of the disorders that break out in 
 their neighbourhood, and as to the origin of wdiicli they 
 may all have eitlier in some way contributed, or at least 
 have had more to do than remoter neighbours. 
 
 What is an o^^rai/? — After riots, routs, and unlawful 
 assemblies, there still remains another specific oti'ence 
 which tends to cause terror and apprehension to liy- 
 standers, and requires some notice. An affray is, strictly 
 speaking, nothing more than an assault committed in a 
 public place and in a conspicuous manner, and is so called 
 because, as Coke says, it ahrighteth and maketh men 
 afraid.^ Such a case occurs where two persons fight in 
 
 ' 7 & 8 Geo. IV. c. 31, §§ 3, 6, 7 ; 32 & 33 Vic. c. 47. 2 7 ^(^ 8 
 Geo. IV. c. 31. § 8. ^ d, Newcastle v Broxtowe, 4 B. & Ad. 273. 
 " Pellew V Winford, 9 B. & C. 135. ^ 1 & S Geo. IV. c. 31, § 11. 
 6 3 Inst. 158. 
 
 VOL. I. R
 
 242 OF THE SECURITY OF THE PERSON. [ch. i. 
 
 the street or any place frequented by the pnl)lic.i And 
 even if a person go about in a threatening manner with 
 any formidable weapon, he may be guilty of an affray, 
 and so be Ijound to his good behaviour ; ^ and the same 
 if, after assaulting or being assaulted, he threatens in a 
 ]3ublic place to renew such assault.-^ The statute of 2 
 Edward III., c. 3, called the Statute of Northampton, with 
 a view to prevent this ready resort to physical force, 
 enacted, that no person, except the king's servants in his 
 presence or his officers of justice, should go about, or ride, 
 armed, otherwise such arms were to be forfeited, and the 
 wearer was liable to imprisonment, and the justices, 
 sheriffs, and lords of franchises were made punishable for 
 not seizing such person.* And statut'i^s of Richard II. 
 again forbade others than those excepted to ride armed.^ 
 The first statute was, however, interpreted only to pro- 
 hibit the wearing of arms and weapons in such a manner 
 as to cause terror, as by going to church at the time of 
 divine service with a gun; but not when this was done 
 merely for the wearer's own protection.^ And for a like 
 reason, if a man for purposes of self-defence assemble his 
 friends in his own house so as to protect himself, this is 
 no aifray, and such step is quite competent to all men.''' 
 
 An affray does not consist in mere angry and hot words, 
 for so long as no individual is actually threatened, none 
 need be affrighted. And if any one is personally afraid, 
 the remedy is to apply for articles of the peace ; or the 
 constable, and he alone, may arrest the threatener, in order 
 that the latter may be taken before a justice and bound 
 over to keep the peace.^ An affray differs on the one 
 
 1 1 Rus.s. Cr. 40G (4 cd.). 2 Pt. v Knight, 3 Mud. 117. 3 Pnce v 
 Seeley, 10 CI. & F. 28. 
 
 4 1 Hawk. c. 63, § 5 ; Case of Armes, Poph. 121 ; Cro. Eliz. 294. 
 riiere was also a law in Athens against going into an assembly 
 armed. — Smith's Diet. Diodes. And the Spartans made a law against 
 going into an assembly with staves, because one once put out 
 Lycurgus's eye. — Plut. Lycurg. In the time of Henry VIII. it 
 appeared a Welshman was prohibited from entering a court of 
 justice carrying arms. — 20 JTen. VIIT. c. 6. But tliis was only a 
 repetition oi' the law of Plautus Sylvauus. — 5 T^niv. Hist. 51. 
 
 5 7. Rich II. ; 17 Rich. TI. c. 1, repealed by 19 & 20 Vic. c. G4. 
 « 1 Hawk. C.3, § 8 ; 3 Mod. 117 ; 2 Bulst. 330. 7 24 Edw. III. c. 33 ; 
 21 Hen. VII. c. 39 ; 3 Inst. 161. » 1 Hawk. c. 63 ; Dalt. c. 8 ; 
 Howell V Jackson, G C. c*t P. 723.
 
 CH. I.] STOPPING AN AFFRAY. 243 
 
 hand from an assault, and on the other hand from a riot. 
 An assault may take place anywhere ; an affray must 
 be in a public place. A riot must be joined in by at 
 least three persons, while one person may be guilty of 
 an affray.^ A prize fight may be fought in so private 
 a manner as to give rise to no offence other than assault.^ 
 Or it may begin as an assault, and soon turn into an 
 affray by constables arriving and suffering resistance.^ 
 An instance of an affray is where a fight is carried on 
 in a public place, in which case all present and encourag- 
 ing are guilty of the offence of affray.* And where parties 
 have promoted the fight, they may be guilty of a riot 
 as well as an affray.^ For the same reason a duel, if 
 carried out in a place of public resort, is an affray in 
 addition to its becoming a crime of murder or manslaughter 
 accordifig to the circumstances and the result. Even a 
 forcible entry into one's own land, or to recover one's owm 
 goods, may be an affray, if force be used, and if numbers 
 of persons join.*^ 
 
 Who may stop an affray. — The rule as to an affray 
 is, that any person whatever, who witnessed it, is justified 
 in usinci force to seize and deliver to a constable one of 
 the affrayers, and if the affrayer is hurt or wounded in the 
 attempt, the person so seizing or wounding him, if the 
 force used was no more than was reasonably adapted to 
 secure the object in view, will nevertheless be justified 
 in his act.^ Not only is a bystander justified in interfering 
 to arrest an affrayer, but if he be reasonably able to interfere 
 with effect, and refuse to assist a constable when asked, 
 he will be liable to indictment, and to be fined and im- 
 prisoned ; for though this offence is seldom prosecuted, all 
 are liable to such an occasional duty.*^ A bystander seiz- 
 ing an affrayer is not bound to keep him in his personal 
 
 1 1 Hawk. P. C. c. 28 § 2. '^ U. v Hunt, 1 Cox, C. C. 177. 3 E. v 
 BeUingbam, 2 C. & P. 234. » R. v Perkins, 4 C. & P. 537. 5 ^ ^ 
 Bellingham, 2 C. <ii P. 234. •= Anon. 3 Stark. 187. 7 i Hawk. c. ti3, 
 §§11, 12 ; 3 Inst. 158 ; Timothy v Simpson, 1 C. M. & R. 757. 
 8 R V Wilburn, Noy, Rep. 50 ; R. -w Brown, Car. & I\I. 314 ; R. v 
 Pinney, 5 C. & P. 2G1. 
 
 The JEgyptians made it a capital crime not to assist a man when 
 assaulted or murdered, or failing that, to discover and prosecute the 
 offender ; the punishment in this last case was whipping and starva- 
 '"on for three days. — Herod. : Diod. Sic. 
 
 R 2
 
 244 OF THE SECURITY OF THE PERSON. [cii. i. 
 
 custody, but is justified in detaining him a reasonable time 
 until a constaiole can be found to take charge of him. 
 And for the same reason, if he has been attacked by the 
 affrayer, he may seize and detain the latter a reasonable 
 time. 
 
 A constable is bound to arrest all persons whom he sees 
 committing or about to commit an affray,^ taking care, 
 however, not to interfere so long as the contention is one 
 merely of angry words.^ He is also bound to receive into 
 custody any affrayers on the report of one who saw the 
 affray committed, though in that case he must exercise 
 his own judgment as to the credibility of the informant.^ 
 And he may likewise pursue an affrayer and break into 
 a house in order to effect an arrest, though he oucrht first 
 to demand admission peaceably.* And while he cannot he 
 lawfully obstructed, yet if one peaceably resist him while 
 arresting the affrayer, he may arrest the person so obstruct- 
 ing, thougli he will not be justified in giving such person 
 a IdIow.^ While a constable may arrest an affrayer who is 
 actually committing or about to commit the offence, yet 
 if the affray is over, he then can no longer, though a 
 witness to the offence, arrest the affrayer. He must in 
 that event get a warrant from a justice of the peace unless 
 indeed he has reason to believe that the affray will be 
 renewed, or unless he is in fresh pursuit of the affrayer.^ 
 
 A justice of the peace, whose primary business is to 
 see the peace preserved, may, like ordinary persons, actively 
 interfere by seizing an affrayer if the affray is committed 
 within his view ; but if the offence is committed out of 
 his view, he can only grant a warrant in the usual way to 
 bring the affrayer before him or to l)ind the affrayer to 
 keep the peace.^ 
 
 Punishment for an cifray. — The judgment in case of 
 this offence is fine and imprisonment, besides being called 
 upon to find surety to keep the peace. Formerly part of 
 
 1 1 Hawk. c. G3, §§ 14, 15. ^ Howell v Jackson, G C. & P. 72.3. 
 
 3 Derccourt v Corbisiilcy, 24, L. J., Q. B. 313 ; Cook v Nethercote, 
 C. & P. 741 ; 2 L. Eayni. 12'JG ; Giilliii v Coleman, 4 II. & N. 2G£ 
 " Ibid. 1 Hawk. c. 03. » Levy v Edwards, 1 C. & P. 40. c q^^^ 
 V Nethercote, G C. & P. 741 ; R. v Walker, Dears). 3.58 ; R. v Lieht 
 D. & B. 3.32. 7 ]i,iwk. P. C. §§ 18, I'J ; Slill v Walls, 7 East, 53G • 
 li. V Belliugham, 2 C. & P. 234.
 
 en. i.J PUNISHMENT OF AFFRAY. 245 
 
 the punishment, when the offence was committed in th(^ 
 royal palace, was the loss of the right hand.^ And it was 
 once the law that affrays, or even hot w^ords, which passed 
 in a churcli or churchyard, were more severely punishable 
 than if they passed elsewhere, for the party offending- was 
 liable to have one of his ears cut off, and to be excom- 
 n)unicated." Nor was it deemed an excuse that another 
 assaulted him first.^ This distinction is now, however, 
 abolished in all except the name."* 
 
 1 1 Hawk. c. 21, § 1. 2 5 & g Ed. VI. c. 4, § 26 (now repealed). 
 3 _Cro. Ch. 4G7 ; Noy, 171. " 23 & 24 Vic. c. 32, § 2 ; 24 & 25 
 
 Vic. c. 100, § 42. Tlie offence of disturbing divine worship in church 
 or cliapel, belongs to the head of " Security of public worship." 
 See also Chap. III. post.
 
 CHAPTER II. 
 
 ACTUAL INJURY TO TELE BODY BY THE NEGLIGENCE OF 
 
 OTHERS. 
 
 Injury to the "body hy negligence of others.— 'WhWo, the 
 law accords protection to the body against all attacks 
 caused by wilfulness or malice — from the most deadly 
 to the most trifling, from murder to the pettiest assault, — 
 this is not sufficient ; for there is still a class of injuries 
 which are caused wholly witliout malice, and wholly with- 
 out any intention to do injury, and yet the suffering and 
 loss may be the same, while the cause is different. Where 
 the body is directly injured by the act or default of 
 another, so that pain, suffering, or death ensues, this re- 
 quires also a remedy. And the law has given such a 
 remedy to the sufferer, or, if the injury is fatal, then to 
 his rej)resentatives, against the person who is the author 
 of the negligence. 
 
 The foundation of this class of injuries and remedies 
 is undoubtedly this, that while each person has the same 
 right as another to pursue his lawful occupations, each 
 is bound, on tliat very account, to bear always in his 
 mind, that there are others in the world besides himself, 
 who are just as intent on business, or pleasure, or gain, 
 as he is. Unless, therefore, he observes some degree of 
 care, and takes some pains not to come into collision with 
 his neighbour, there will be indefinite mischief and injury, 
 not to speak of irritation ;iiid hot blood. It is matter of 
 common experience, that there is a right way and a wrong- 
 way of doing most things — a careful, and prudent, and 
 considerate way, and a reckless, imprudent, and unscrupu- 
 lous way ; and that, while recklessness exists, on one side 
 or on botli sides, tlicre cannot fail to be injuries and 
 collisions, more or less serious to one or other.
 
 CH. ir.] NEGLIGENCE AND ACCIDENT. 247 
 
 Negligence distinguished from accident. — At the same 
 time it is eciually matter of experience, that there are 
 many events dangerous to life and limb, which are wholly 
 beyond human control, which no sagacity can foresee or 
 provide against, and yet which constantly thwart human 
 schemes, but which involve no l)lame whatever to any 
 third person, and consequently ought not to involve 
 any loss or punishment. The ills, that flesh is heir to, are 
 often wholly separaljle from any human culpability ; or 
 may be too subtle to attract the notice of the law. In such 
 a case each individual must submit, as if to an inevitable 
 mischance. These two distinctions — one involving, and 
 the other not involving, culpability, are usually known to 
 the law under the head of negligence and of accident. If 
 the act of one person is so closely connected with the 
 suffering or loss of another that one is tlie immediate cause, 
 and the other is the immediate consequence, then a liability 
 of the former person to make good the loss of the latter 
 person arises out of the circumstances. Why this should 
 be, scarcely requires explanation. Human life abounds in 
 dangerous situations, and if each were to act recklessly, 
 few would be safe from wrong and injury. At the same 
 time, if no connection of cause and effect between the two 
 things can be traced, or if it be too far-fetched, or if no 
 connection beyond what is inevitable and blameless can 
 be discovered, then no such liability arises, and each must 
 bear his own losses. The loss is then a mere accident, 
 for which no remedy is provided to the one, because no 
 culpability can be traced to the other. The difficulty of 
 applying this ride arises from the infinite variety of cir- 
 cumstances and mutual relations, to be examined and to 
 be classified under the one head or the other : undei' 
 blamable or actionable negligence, and under inevitable 
 or blameless accident.^ 
 
 IVlicre injury to the hody is fatal. — Though the rule of 
 law has always been established, that injury caused to the 
 body by the negligent acts of another was a cause of 
 action, still another maxim was in force, namely, actio 
 personalis moriticr cum jpcrsond ; so that, if the sufferer 
 
 ^ The Brelion law had most elaborate rules for deteniiining when 
 an accident did or did not give rise to compensation. — 3 Anc. L. 
 Irel.
 
 248 OF THE SECUKITY OF THE PERSON. [cH. ir. 
 
 was killed by the negligent act, the right of action died 
 with him, and his executors or relatives could not found 
 any claim. This anomaly, namely, that, if a person had 
 l^een only injured to a slight degree, the wrong-doer was 
 liable in lieavy damages, whereas, if the injury had been 
 so great as to be fatal, the wrong-doer wholly escaped 
 liability, was put an end to by Lord Campljeirs Act 
 in 1846,^ which gave a right of action, on nearly the 
 same ground, to the executor, or administrator, or near 
 relatives, in certain cases, as the person would have had 
 for a less sum, if he had been merely wounded but not 
 killed;^ 
 
 The passing of the act 9 & 10 Vic. c. 93, thus gave a 
 great impetus to remedies for injuries to the person, by 
 enabling the relatives of those persons wdio have been 
 killed, in what are frequently called railway and like 
 accidents — but which are deemed negligent acts bv the law, 
 when they serve as a basis of compensation — to sue and 
 recover damages for the loss of life by such persons, or 
 rather for the loss of the benefits derived through such life. 
 The action for actual injuries to the person being founded 
 not on accident, but on negligence on the part of the person 
 who was in charge of the conveyance, process, or opera- 
 tion, in connection with which the injury arose, and the 
 
 ' 9 & 10 Vic. c. 93 ; 27 & 28 Vic. c. 95. 
 
 ^ This principle, that the cause of action dies with the injured 
 person, is of uncertain origin in English common law, and the recital 
 to the statute 9 & 10 Vic. c. 93, is said to have impliedly stated that 
 there was no remedy in damages to a wife, or child, or master, for a 
 person killed, before that act was passed. — Osborn ?; Gillett, L. R., 8 
 ExcJi. 88. The old remedy of an appeal of death was, however, 
 pi'obably somewhat equivalent to the modern process, for the wife 
 and heir of a person killed cnuld sue out this appeal. It is left some- 
 what obscure what was the precise effect of that remedy, when it 
 was competent. — Hawk. P. C. b. ii. c. 23 ; Bigby v Kennedy, 5 
 Burr. 2G43 ; Mirror, c. 2, § 7. 
 
 The i)cculiarity of the English connnon law, which allow(Hl an 
 action for personal injury when the jterson was not killed but only 
 injured, and no action wlien lie was killed, was not known in the old 
 Welsh laws, for it was ])rovided by the codes of the 10th and 12th 
 ce7)lin-ies, that if a married man was killed by negiigencc, compen- 
 sation should be paid, and one-third of it should go to the widow. — 
 Dirnet. Code; Gwent. Code, b. ii. c. 29. Indeed ail barbarous codes 
 ordered compensation to the family of tiic slain person, wiiether he 
 was killed by accident or by murder. — See_po6i, cii. iv.
 
 OH. II.] ACTION FOR NEGLIGENT KILLING. 249 
 
 ground of action' being precisely the same, whether tha 
 result of that negligence was a trifling bodily injury, or 
 ended in pain and death, the whole difficulty which th(^ 
 law has to overcome lies in defining what is the nature of 
 that negligence, if any. And this can only be satisfactorily- 
 shown by enumerating with some detail, the leading situa- 
 tions and mutual relations of life and business, in which 
 care and attention are required l)y the law, and the 
 absence of which is the negligence on which such liability 
 rests. 
 
 Who can sue for the negligent killing. — The statute of 
 9 & 10 Vic. c. 93, does not give the right of action to the 
 executors, as such executors in their own right, of the 
 person killed by negligence, and for the benefit so to speak 
 of the estate of the deceased, but only in those cases 
 wliere the party killed had some near relatives surviv- 
 ing him. These relatives are a husband, wife, parent, 
 grandparent, step-parent, a child, and grandchild or step- 
 child.^ Where none of such relatives survive, where he is 
 a friendless man, then the old maxim still applies, that 
 the right of personal action dies with the person injured ; 
 and nuthino- more is heard of either the author or victim 
 of the blame.^ 
 
 Within what time action for negligent killing to he 
 brought. — There are some other peculiarities attached to an 
 action of damages for negligent injuries causing death, and 
 these are also created by statute. The action can only be 
 commenced within twelve calendar months after the death of 
 the injured person.^ And if the action is not commenced 
 within six months, by the executor or adminstrator who 
 has tlie ridit in the first instance to sue for the benefit of the 
 relatives, then au action may be commenced by one or more 
 of the persons beneficially interested, that is, the immediate 
 relatives above named.^ The jury also have it in their 
 power to specify or apportion the damages proper to each 
 of the relatives respectively ; though if the defendant pay 
 
 1 9 & 10 Vie. c. 03, § 8. 
 
 2 Tlie word " cliiltl " in this statute means legitimate child, for a 
 bastard is not a child in the eye of the law. — Dickenson v S. E. R. Co., 
 2 H. & C. 735. 
 
 ;' 9 & 10 Vic. c. 93, § 3. " 9 & 10 Vic. c. 93, § 2 ; 27 & 28 Vie. 
 c. 95, § 1.
 
 250 OF THE SECURITY OF THE PERSON. [ch. it. 
 
 money into court before verdict, it will suffice that lie pay 
 one lump sum to cover the claims of all the relatives 
 interested.^ 
 
 Compensation for negligent killing. — Much difiiculty at 
 first arose as to defining how this kind of damage was to 
 be estimated. The statute gives no further clue to what 
 is meant by "the damages" authorised to be recovered 
 than by simply calljng»theni " damages such as tlie jury may 
 think proportioned to the injury resulting from the death 
 to the surviving relatives." - this is a vague expression, 
 and opens a field for conjecture, but it is the business of 
 courts of law to define and make precise what a statute 
 often leaves indefinite. The death contemplated in this 
 statute obviously means sudden or premature death, and on 
 this ground, in applying the statute, the courts have refused 
 to allow the jury to add a separate sum for funeral expenses 
 and mourning, as these are not specially due to the sudden- 
 ness of death,=^ but are rather incident to the death of each 
 and all, whenever that death may happen. And in working 
 out this liability it has also been found, that a master cannot 
 bring an action for the negligent killing of his son v/ho was 
 merely his servant, for the benefit lost must arise through 
 relationship and not through ^contract, and if no loss was 
 due to the relationship as such, none due to the contract 
 could be taken into account.^ 
 
 Row compensation estimated. — Again, though this mortal 
 injury has the effect of causing sudden loss of companion- 
 ship and many comforts to relatives, yet as these cannot 
 always be estimated in money, they are not deemed to be 
 contemplated by the legislature. Everything must be 
 brought to the test of pecuniary value, and what may be 
 called sentimental losses, due to anguish springing out pf 
 affection towards the deceased, cannot be made" good in 
 the form of damages under this statute, or indeed in any 
 other form of remedy known to the law.^ And where the 
 life of the deceased was insured, and so a sum is due under 
 a collateral contract with an insurance office, this sum has 
 
 1 9 & 10 Vic. c. 93 § 2 ; 27 & 28 Vic. c. 95 § 2. ^ 9 & 10 Vic. 
 c 9->> S 2. 3 Dalton v S. E. R. Co., 4 C. B., N. S. 296. * Sykes v 
 N. E.' II. Co., 44 L. J., C. r. 191. •' Blake v Midland U. Co., 18 
 Q, B. 9:5 ; Duckwortli v Johiison, 4 H & N. G53.
 
 CH. II.] COMPENSATION FOR NEGLIGENT KILLING. 251 
 
 nothing' to do with the liability for negligent killing, and 
 cannot influence the jury in fixing the amount of their 
 verdict.^ 
 
 The amount of compensation, which the jury may 
 legitimately estimate, is however not restricted to a 
 consideration of such loss as is measured solely by the 
 legal liability which the person killed may have been 
 under to maintain the relatives interested. Thus if the 
 deceased was in the habit, out of mere liberality, of aiding 
 in the support of his parent or any of the other relatives, 
 his death will be deemed as good a ground of claim on 
 that head, as if such support had been a compulsory 
 maintenance. Hence the loss of a reasonable expectation 
 of pecuniary advantage, is included in the estimate of 
 compensation.^ And such was held to be the case, where a 
 young man, who had been for some years in the habit of 
 making presents to his parents of a definite value, such as 
 201. per annum, was killed, and the jury were held rightly 
 to award compensation to the parent for the loss of that 
 yearly sum. And the actual income of the deceased is 
 always the main ground of calculation ; but even that is 
 not the only standard of damage, for if the deceased had a 
 reasonable expectation of increasing such income, then 
 this increment also may be taken into consideration and 
 added to the actual income.^ Thus, though there is no 
 legal obligation on a parent to support a child, to an 
 extent beyond the mere necessaries of life, that is to say, 
 little beyond the minimum administered in a workhouse, 
 yet the damage resulting to the cliildren is not measurefi" 
 by this minimum standard. It is measured by the station 
 of life of the deceased, and the advantages of education, and 
 superior maintenance, and reasonable provisions by will, 
 which usually accompany such station and the income 
 actually enjoyed ; so that, when these cease prematurely 
 with the parent's life, the relative's loss is measured on a 
 larger scale. Accordingly, where a parent, who had a life 
 estate of 4,000/. a year, was killed before he had made any 
 will, and leaving a widow and eight children, it was held 
 
 1 Bradburn v G. W. R. Co., 44 L. J. Exch. 9. 2 Dalton v S. E. R. 
 Co., 4 C. B., N. S. 2'JG : Franklin v S. E. R. Co., 3 H. & N. 211. 
 3 Ibid. ; Pym v G. N. R. Co., 4 B. & S. 39G.
 
 252 OF THE SECURITY OF THE PERSON. [ch. ii. 
 
 that the jury rightly awarded her 1,000/., and each of the 
 children 1,0001} 
 
 Rules for ascertaining cohere negligence exists. — Though 
 the statute of 1847, already referred to, gave an impetus 
 to the remedy for negligent killing, it did not profess to 
 introduce any new rule of viewing the circumstances 
 and estimating the degree in which the negligence, which 
 is the basis of the action, exists. The old rule on that 
 point remained unaffected, and the same negligence, which 
 is a cause of action if the injury be slight and not mortal, 
 is equally the cause of action and redress if the injury 
 be mortal, and in defining more exactly this kind of 
 remedy, a few subsidiary rules are commonly deemed 
 settled. 
 
 The person injured or hilled must 7iot have been himself 
 negligent. — One I'ule, by which this class of remedies is 
 qualified, is, that the negligence of the defendant must be 
 the sole, or all but the sole, cause of the accident, and 
 nothing in the conduct of the deceased or injured person 
 " must have been a proximate cause of it, or, as it is 
 called, a contributory cause ; for if it were once allowed 
 for courts and juries to enter into nice inquiries as to how 
 much or how little of the joint result was attributable to 
 the conduct of each of two persons, the injurer and the 
 injured, there would be no end to the inquiry, and it never 
 could be solved satisfactorily. Hence it is said that the 
 cause of this kind of action must be due wholly to the 
 negligence of tlie defendant. Accordingly, if the deceased 
 has himself been negligent, and such negligeuce is a proxi- 
 mate cause of the accident, then there will be a complete 
 defence, since it cannot then be said that his death or 
 injury was caused by the mere wrongful act of another.^ 
 
 The character of the negligence of deceased as regards 
 its being a proximate cause of death is inqiortant in all 
 those cases where some negligence is set up against the 
 deceased, and it is desired to know when that is deemed a 
 bar to redress. It is not enough to show that the plaintiff, 
 or the person killed, was guilty of some negligence, unless 
 such negligence was one of the proximate causes of the 
 
 1 Pyni V G. N. W. Co., 2 B. & S. 759 ; 4 B. & S. ;390. 2 BntterHeld 
 V Forrester, 11 East, GO; I'owcll v Gcii. Steam Co., 5 E. & B. 
 195 ; Witherby v Regent's Canal, 12 C. B., N. S. 2.
 
 CH. n.] CONTRIBUTORY NKGLIGENCE. 2o3 
 
 accident, for the prior negligence may have had nothing 
 to do with what followed. Thus if a man were to be 
 found sleeping on a highway, and the driver of a vehicle 
 coming n\) might have avoided the sleeper, l)ut kept to 
 his side of the road and ran over him, this would he as 
 much a cause of action as if the plaintiff had committed 
 no negligence at all ; in other words, the plaintiff's negli- 
 gence is too remote to be considered in the question.^ 
 And the true rule to be left to a jury in such cases as this 
 is, whether the damage was occasioned entirely by the neg- 
 ligence or improper conduct of the defendant, or whether 
 the plaintiff himself so far contributed to the misfortune 
 by his own negligence or want of ordinary and common 
 care and caution, that but for such negligence or want of 
 ordinary care and caution on his part the misfortune would 
 not have happened.^ 
 
 Contrihiitory negligence in the case of coaclies racing. — 
 This doctrine of contributory negligence has been carried 
 to an extent somewhat remarkable in cases of collision of 
 carriages and ships, and a derivative or constructive negli- 
 gence of the driver or pilot, imputed to a j)assenger, wliich 
 in no sense resulted from anything the plaintiff did or 
 could do in his own person relating to the matter. Thus 
 where two coaches are racing, and the respective drivers 
 are each guilty of negligence, it has been held, that a 
 passenger on the A coach will be estopped from recovering 
 damages for negligence of the B coachman who upset the 
 A coach. The reason of this apparently anomalous doctrine 
 is said to be, that, as each passenger has trusted his own 
 driver by riding in his coach, he has so identified himself 
 with his own driver that the latter's negligence is deemed 
 his own. At least there is no reason why he should be in 
 a better position than his driver ; and hence no damages 
 are recoverable against the opposite driver. His only 
 remedy in such a case is to recover damages from his own 
 
 1 Davis V Mann, 10 M. & W. 546 ; Radlev v L. & N. W. R. Co., 44 
 L. J., Exch. 73 ; Greenland v Chaplin, 5 Excli. 248. Tiie first of 
 these cases was that of a donkey lying on the road, but precisely the 
 same principle of liability applies between man and man in cases of 
 negligent killing or iiijnring. 
 
 2 Tuff V Wannan, 5 C. B., N. S. 585 ; Walton v h. & Brighton 
 E. Co., H. & R. 424.
 
 254 OF THE SECURITY OF THE PERSON. [ch. it. 
 
 driver.^ In short, by his own act and contract he has 
 converted himself into something as helpless, as if he were 
 only a bale of goods in the driver's custody. And for a 
 somewhat similar reason it has been held, that, if a nurse 
 or other temporary guardian is carrying or leading a child 
 of tender years, and by the nurse's negligence in part, 
 combined with the negligence of the railway company or 
 carrier, the child is injured, the infant cannot recover 
 damages in its own right, because it is deemed to have 
 been so identified with its nurse that the nurse's negli- 
 gence is imputed to the child and forms a bar to any such 
 remedy .2 The reason given for this decision is that as the 
 child is little else but a chattel, the contract is necessarily 
 made with the nurse, and one of its conditions is that 
 tlie nurse shall take care of the child. Hence, on this 
 condition being broken, the nurse alone is to blame, and 
 neither nurse nor child can recover damages. 
 
 Negligence implies a want of wilful intention. — While 
 negligence is distinguished from mere accident on the one 
 hand, it is distinguished from wilfulness and intentional 
 injury on the other. When it is said that negligence is 
 the legal cause of injury or pain to the body, it is not 
 meant that the negligent person should have distinctly 
 intended the injury which results. It is rather the con- 
 trary, for negligence consists in the absence of a specific 
 intention to injure, but in the presence of a reckless or 
 careless disposition as to whether the act was likely to do 
 injury or not, or at least in the absence of a general know- 
 ledge such as a reasonable person would have that the act 
 was dangerous, and yet where no precaution to guard against 
 that danger was taken. Thus where a man in the train 
 bands used his gun so carelessly that it went off and 
 injured a comrade, the action was maintainable.^ And 
 one judge laid down the rule that no man is excused of 
 a trespass, unless it is judged utterly without his fault.* 
 Some carelessness is thus always an ingredient of the 
 action, though it is often loosely stated, that a man may 
 be liable for an accident or misfortune. Such a statement 
 
 ^ Thoro.erood v Bryan, 8 C. B. 115 ; Armstrong v Lnncasliire 
 R. Co., 44 L. J. Exch. 89. '^ Waite v N. E. II. Co., E. B. E. 719. 
 
 3 Uiulcrwood V Hewson, 1 Str. 51)G ; Weaver v Ward, Hob. 134. 
 < Hob. 1.34.
 
 CH. II.] BODILY INJURIES BY NEGLIGENCE. 255 
 
 must be always guarded with the qualification, that there 
 must be some carelessness mixed up with such accident 
 or misfortune in order to found an action against him who 
 displayed it. Hence it has been found impossible to 
 sustain any action, for example, where a horse is frightened 
 by a sudden noise or clap of thunder and runs down some 
 person ; because this is an event which no care can guard 
 against.^ So where a sudden flood sweeps away part of a 
 railway, and passengers are injured, the railway company 
 are not liable.- And where a man, while repairing it, 
 suddenly falls through the roof of a railway station and 
 causes injury to a passenger below, the railway company 
 is not liable to the passenger, for such an accident could 
 not be helped.^ 
 
 On the other hand, though it is often difficult to define 
 the ingredient of negligence, this much is clear, tliat the 
 act done always implies a knowledge, or an unreasonable 
 want of knowledge, that such act may injure others, 
 coupled wdth omission to guard against such mischief by 
 any reasonable means. Thus negligence is easily inferred 
 from such conduct as the followincj : — To tell a child to 
 fetch or do something to a loaded gun :* to allow a man 
 to caiTy an explosive substance without some warning 
 what it is, for there is an implied duty in such case to 
 give such notice :^ to spur a horse while people are 
 standing near :*^ to leave a horse and cart unattended in 
 the street where children are playing about, '^ and yet 
 children's curiosity and tendency to incur danger are not 
 to be used as a handle to found liability Avhen the fault 
 is the child's alone, and nobody else is to blame.*^ And 
 •where the keeper of baths and washhouses has a dangerous 
 machine, of which no warning was given to a customer 
 using it, such keeper is liable.^ 
 
 A chain of accidents from negligence. — Another difficulty 
 
 1 Wfikeman v Robinson, 1 Binsf. 213 ; 8 Moore, 63 ; Hammack 
 
 V White, 11 C. B., N. S. 588 ; Holmes v Mather, 44 L. J., Exch. 17(i. 
 2 Withers v North Kent R. Co., 27 L. J., Exch. 417. 3 Welfare v 
 London & Bric^hton K. Co., L. R., 4 Q. B. 693. ■* Dixon v Bell, 5 
 M. & S. 198. 5 Farrant v Barnes, 11 C. B., N. S. 553 ; Brass v 
 Maitland, 6 E. & B. 470. 6 North v Smith, 10 C. B., N. S. 572. 
 7 Lynch v Nurdin, 1 Q. B. 38. « Mangan v Atterton, L. R. 1, Exch. 
 239 ; AVitherby v Regent's Canal Co., 12 C. B., N. S. 2. » Cowley 
 
 V Sunderland, 6 H. & N. 6G5.
 
 256 OF THE SECURITY OF THE PERSON. [ch. ii. 
 
 still arises, where there is a chain of causes, and it is neces- 
 sary to define where the line is to be drawn, in order to 
 fix the liability, for the causa causans is to be distinguished 
 from the cmtsa sine qua non. The law acts on the maxim 
 that it is the proximate cause, which is looked to as a 
 ground of liability, and injuries arising out of ulterior 
 circumstances are deemed not attributable in the eye of 
 the law to the wrongful act, but rather to the chances of 
 life. And indeed if remote antecedents were inquired 
 into, the inquiries would be endless and objectless. It is 
 impossible, however, to state this as a universal rule, since 
 there are cases where the original cause continues to be 
 the dominant cause all through a variety of intermediate 
 events. Thus, if the negligence of the driver of a coach 
 causes the horses to run away, and a passenger, reasonably 
 apprehending danger, jump off to save his life, and thereby 
 break his leg, the first negligence is deemed the dominant 
 cause of this broken leg.^ If a person throw a squib into 
 a crowd, and first one and then another in self-defence 
 catches it and throws it oft, till at last it puts out a man's 
 eye, the latter is entitled to an action against the first 
 thrower, as if it had been aimed at him from the first, or 
 at least, as if the intervening acts of others had merely 
 given the missile a course somewhat more circuitous.^ And 
 hence this was deemed an instance of " trespass " rather 
 than of " case," when those distinctions were deemed of 
 consequence. The case of the squib may be treated as 
 one of a series of mechanical changes only in the direction 
 of the squib. In other cases it maybe difficult to trace 
 the first cause so steadily, when the voluntary action of 
 third parties intervenes, or unexpected incidents arise ; and 
 the true limit to the rule seems to be, tliat those conse- 
 quences only will be deemed to flow from the act which 
 in the ordinary course of events are known by all intel- 
 ligent men so to flow. Thus, when the neqliuence of a 
 railway company caused a family to walk home some 
 miles during a wet night, and the mother of young children 
 caught cold, this cold was deemed too remote and unusual 
 a consequence to be taken into account as arising from the 
 negligent act.^ 
 
 ' Jones V Boycc, 1 Stark. 493. ^ gcott v Sheplicrd, 2 W. Bl. 89^ ; 
 3 Wils. 403. 3 Hobbs v L. & N. W. R. Co., 44 L. J., Q. B. 49.
 
 OK, II.] NEGLIGENCE IN PERSONAL IXJUPJE^i. 257 
 
 When negligence is self-evident and is presnmed. — And 
 there are some circumstances which are so pregnant with 
 negligence, that they are deemed of themselves without 
 any further knowledge of the surrounding facts to be 
 primd facie evidence of such negligence. As to these the 
 maxim is, res ipsa loqivitur, and the plaintiff need give no 
 further evidence than this fact, for it lies on the defendants 
 to explain it away. Thus it is, when there is a collision 
 between two trains of the same railway company; as some 
 negligence must have been due to one or both of their sets 
 of servants, the company is held primd facie negligent.^ 
 So it is, where a sack falls from a top window of a flour- 
 dealer's premises into the street or highway ; '^ or a brick 
 falls out of a railway bridge on the highway;^ or a 
 passenger's eye is struck by the driver's whip ;* or a horse 
 kicks through the carriage which it is drawing.^ And the 
 breaking down of a coach, owing to a defective axle-tree, 
 Avhich might have been discovered by inspection, has been 
 treated as prima facie negligence.*^ The mere happening 
 of an accident, however, may be said to be more usually 
 not suificient primd facie evidence of negligence than the 
 contrary; and one can seldom with safet}' judge of it with- 
 out knowing the surrounding facts.^ 
 
 Negligence is alvKiys a question of fact and circumstances. 
 — It is thus manifest that negligence on the part of the 
 wrongdoer is always a question of circumstances, and can 
 only be decided by reference to the situation in which 
 such wrongdoer was at the time ; and the degree of care, 
 or want of care, is also to be estimated accordingly. In- 
 numerable occasions occur for two persons coming into 
 co-llision in some form or another, and whether one is to 
 blame or not at any particular moment, can only be traced 
 out by inquiring what he was doing at the time, whether 
 he was engaged in his own lawful business, and whether, 
 while so engaged, he was sufficiently mindful of the 
 business of others. 
 
 1 Skinner V L. ik Brighton R. Co., 5 Exch. 787. 2 Byrne v Boodle, 
 2 H. & C. 722 ; Scott v London Ducks, 3 H. & C. o'JG ; Brigs^^s v 
 Oliver, 4 H. & C. 403. 3 Kearney v L. B. & S. C. R. Co., L. R., 5 
 Q. B. 411 ; L. R., Q. B. 769. * W.-ird v Gen. Omnibus Co., 42 L. J., 
 C. P. 265. 5 Simpson v Oumibus Co., 42 L. J., C. P. 112. 6 Sharp 
 V Grey, 9 Bing. 457. 7 Hammack v White, 11 C. B., N. S. 588. 
 
 VOL. I. S
 
 258 OF THE SECURITY OF THE PERSON. [ch. ii. 
 
 Classifimtion of circumstances displaying neglifjence. — 
 As the business of life is infinite, and negligence is thus 
 always a relative term, no rule can be laid down for the 
 infallible discovery of what is or what is not negligence 
 in each case. Nevertheless there are some well-known 
 classes of circumstances, out of which danger to life 
 usually arises, and as to these some subsidiary rules of 
 viewing facts have been arrived at, which amount almost 
 to rules of law. 
 
 Negligent carriage of passengers hy raihvay. — In consider- 
 ing railway accidents causing injury to life, as a fruitful 
 source of actions, it must be recollected, that the usual 
 contract of a carrier is, not to carry the passenger safely 
 at all hazards, or to insure his safe arrival, or to insure that 
 the carriage is free from latent defects ; but it is merely to 
 use due care and diligence in conveying him in a carriage 
 reasonably believed to be sound ; and in this, as in all 
 other cases, inevitable accidents may occur, which imply 
 no negligence on the part of the carrier. 
 
 Railway accidents loh-en implying negligence. — It is 
 sometimes said that the mere fact of a railway accident 
 having occurred, when nothing more is known about its 
 cause, is primd facie evidence of negligence on the part of 
 the railway company ; but this is only true when the 
 known circumstances reasonably exclude any other cause.^ 
 For an accident may be due to some latent fault in a 
 wheel, implying no negligence whatever in any person, 
 since no care can prevent or discover such a fault.^ And 
 this is a rule which applies also to the maker of goods, 
 intended to be used for a particular purpose, but somehow 
 failing to accomplish that purpose.^ Or the accident may be 
 caused by some wilful or malicious act, or some negligence 
 of a stranger or third party, for whom the company cannot 
 be made answerable.* Hence also, where a child strayed 
 upon a railway and was killed, but no one could tell how 
 the child got there, there was no pritnd facie liability to be 
 
 > Skinner w L. & B. R. Co., 5 Excli. 787 ; Bird v G. N. R. Co., 
 28 L. J., Exch. 3. 2 Kcadlieadv Midland R. Co., L. R., 2 Q. B. 412 ; 
 
 4 Q. B. 379. 3 Randall d Newson, 45 L. J., Q. B. 304. •< Latch v 
 Riinincr R. Co., 27 L. J., Exch. 155 ; Daniel Metrop. R. Co., L. R., 
 
 5 H. L., Ap. 45.
 
 cii. II.] EVIDENCE OF NEGLIGENCE. 259 
 
 implied from the mere fact of the child being so killed.^ 
 And the mere fact that the railway company might have 
 taken greater precautions to guard against a possible cause 
 of accident, is very seldom to be treated as primd facie 
 negligence, for if so, inquiries into the comparison of 
 opinions, which conflict on nearly every practical matter, 
 would be endless and never satisfactory ; as for example 
 whether the metal facings of stairs are safer when made of 
 1)rass or lead ;^ or whether an iron girder erected by third 
 ])arties over the railway would fall down on passengers, if 
 the latter were not specially protected.^ 
 
 Sometimes also a person may take all the risk of injury 
 on himself, in which case he has no remedy, for the 
 ordinary rule will, by his own express contract, have no 
 application; and though the court will be slow to presume 
 yuch a contract, it is sometimes made out very clearly.* 
 And if the passenger has taken on himself the risk of the 
 travelling, this will inchule also the risk of coming to and 
 going out of the railway station.'^ And for a like reason, if 
 a workman be taken gratuitously in a carriage of the 
 person for whom, and to the place at which, he is to work 
 for that person, and owing to an accident to such carriage 
 lie is injured, the driver is not liable, for such workman 
 is merely on the footing of a guest who shares all risks 
 with the host.^ 
 
 Courts have ofUn to decide if there is any evidence of 
 negligence. — The duty is often cast on courts to say, whether 
 the circumstances, under which a railway accident happened, 
 show any evidence to go to a jury of negligence on the part 
 of the company. On such occasions the court brings to bear 
 on the business of life the same experience and the same 
 estimate of conduct as juries do, except that, whenever it 
 becomes manifest that there is some evidence to go to a jury 
 about which reasonable minds may differ, then the court 
 will itself seldom undertake to say whether that evidence 
 ought to lead to one conclusion rather than another, for a 
 jury is the proper tribunal to weigh and cast up and declare 
 
 ' Singleton v Eastern Co. R. Co., 7 C. B., N. S. 287. 2 Crafter v 
 Metrop. Co., L. R., 1 C. P. 300. ^ Daniel v Metrop. R. Co.. 40 L. J. 
 (11. L.), C. P. 121. " Gallin v L. & N. W. R. Co., L. P., 10 i}. B. 212 ; 
 Hull V N. E. R. Co., L. K., 10 Q. B. 437. & Ibid, g Moffult v Bate- 
 luan, L. R,, 3 Priv. C. 115. 
 
 s 2
 
 260 OF THE SECUJllTY OF THE PERSON. [ch. ti. 
 
 on which side the balance turns. Thus if a train has 
 arrived at a station — when and under what circumstances 
 the passenger is justified in getting out — whether he has 
 acted thoughtlessly or hastily, without waiting till the train 
 has come to a stand — whether on hearing the name of the 
 station called out, he is justified in assuming that he may 
 get out — whether in stumbling in a dark passage, sufficient 
 care has been taken to light it — all such speculations give 
 rise to numerous questions, whicli however are chiefly ques- 
 tions of fact as to which no clear rule can be laid down, 
 and it would be idle to attempt it.^ And in like manner 
 when people cross a railway at a place where the highway 
 is on a level, and there is no local watchman, the degree of 
 care on the part of the passenger must be proportioned to 
 the situation; and while he is bound to look out lest contrary 
 trains be approaching, some weight will be due to the fact 
 whether the company have used sufficient guide-posts and 
 precautions as a fair protection to jiassengei'S.^ And it has 
 been also laid down as a subsidiary rule, that, if one person 
 by a negligent breach of duty expose another person, 
 towards whom the duty is contratjted^to obvious peril or to 
 grave inconvenience, though this last may be the immediate 
 cause of the injury, it is not less to be regarded as due to 
 the wrongful act of the wrongdoer." 
 
 Statutory requirements in further protection against rail- 
 v)ay dangers. — Though the common law thus protects 
 human life against many accidents arising out of the use 
 of railways, still this has been deemed by the legislature 
 insufficient; and some additional requirements and penalties 
 have been created by statute towards the same end. Many of 
 the details of railway management have indeed been framed 
 
 1 Siner v G. W. R. Co., L. R , 3 Exch. 50 ; 4 Exch. 117 ; Cockle 
 
 V L.& S. E. R. Co., L. R., 5. C. P. 457 ; Rolison v N. E. R. Co., L. R. 
 10 Q. B. 271 ; Bridges v N. L. R. Co., L. R., G Q. B. 377 ; 43 L. J. 
 (II. L.), Q. B. 151 ; Weller v L. & B. R. Co., 43 L. J.. C. P. 137. 
 ■' Stubley w L. & N. W. R. Co., L. R., 1 Exch. 13 ; Skelton v h. & 
 N. W. R. Co , L. R., 2 C. P. 631 ; Stapley v L. B. & S. Co., L. R., 
 1 Exch. 21 ; Bilbee v L. B. & S. Co., 18 C. B., N. S. 584 ; Wanless v 
 N. E. R. Co., L. R., 6 Q. B. 481 ; 43 L. J., H. L.. Q. B. 185 ; Ellis 
 n G. W. R. Co., 43 L. J. (Exch. Ch.), C. P. 304. 3 Jones v Boyce, 
 1 Stark. 4!)3 ; Adams v Lane. & Y. R. (^o., L. R., 4 C. P. 744 ; Gee 
 
 V Metrop. R. Co., L. R., 8 Q. B. 173 ; Robson v N. E. R. Co., L. R., 
 10 Q. B. 272.
 
 c-H. II.] FURIOUS DRIVING. . 2C,\ 
 
 more or less for (his one ol)ject — to lessen the danger to 
 human life ; but the present subject requires only a notice 
 of a few special injunctions which bear directly on this one 
 point. In order to secure the public against the increased 
 danger to human life from railways crossing highways on a 
 level, the Eailways Clauses Act imposed the duty on railway 
 companies to keep a gate across each side of the railway 
 sudicient to exclude cattle and liorses at that spot, and to 
 keep a proper person to open and shut such gates.^ Under 
 this enactment, as the duty to have a person always at 
 hand to open gates can be enforced, if a passenger himself 
 open the gates without the leave or presence of the com- 
 ]>any's servant, he usually takes the risk of the passage on 
 himself.'-^ And to enhance the safety of passengers, each 
 railway company is bound in certain cases to provide 
 means of communication between the passengers and 
 guard. ^ To throw maliciously and unlawfully any stones or 
 other matters at railway carriages, with intent to injure 
 or endanger the safety of any person in the carriages, is 
 felony; Avhile children under sixteen may be punished 
 in a summaiy manner for like misconduct.* And to put 
 stones or things on railways likely to upset carriages is 
 also a like offence.'^ 
 
 Driving neglvjently and furiously on higJiivays. — The 
 instances of negligence and consequent injury to passengers 
 using a railway belong to one form only of using a 
 particular conveyance. In driving ordinary conveyances 
 in the highway there is found another illustration of the 
 same fundamental rule, which 7ule is this, that each 
 person nuist take care not to injure another by driving 
 against him ; and the right side of the road is assumed to 
 be common knowledge to all men. The circumstances 
 nuist always be the main guide, should occasion arise to 
 judge whether due care was exercised. When a driver is 
 guilty of a negligent injury, this arises usually from his 
 t)eing too intent on his own business to give due attention 
 to the business of others. It is owing to this being so 
 
 ' 8 & 9 Vic. c. 20, § 47. '^ WynU v G. W. R. Co., 6 B. & S. 
 
 709. 3 31 & 82 Vic'. c. 119, § 22 ; Blamires v Lancaster R. Co., 42 
 L. J., Exch. 182. " 24 & 25 Vic. o. 100, § 33 : 27 & 28 Vic. c. 47 : 
 34 & 35 Vic. c. 78, § 13. » 24 & 25 Vic. c. 97, § 35 j 27 & 28 Vic. 
 c. 47 ; 34 & 35 Vic. c. 78, § 13.
 
 262 OF THE SECURITY OF THE PERSON. [cri. n. 
 
 common a case and being carried so far, that the legisla- 
 ture has been driven to constitute furious driving a distinct 
 offence, as it is so apt to end in serious and irreparable 
 injuries to bystanders and passengers. Hale said killing 
 by furious driving was a kiml of manslaughter, for thougli 
 there is an absence of malice, yet the recklessness and 
 want of care are very conspicuous. While, therefore, the 
 numerous accidents that arise in the course of driving 
 caniages on a highway give rise most frequently only to 
 actions for damages, yet where some flagrant recklessness 
 of the driver occasions injuries, this is properly treated 
 as a criminal offence, seeing that every use of a highway 
 entails as a consequence a reasonable care for the lives and 
 properties of others, who may with equal rights be using 
 the same highway at the same time. 
 
 Accordingly it is enacted that whosoever, having the 
 charge of any carriage or vehicle, shall by wanton or 
 furious drivimj or racing, or other wilful misconduct, or 
 by wilful neglect, do or cause to be done any bodily harm 
 to any person whatsoever, shall be guilty of a misde- 
 meanour ; and beino- convicted thereof shall be liable at 
 the discretion of the court to be imprisoned for any terni 
 not exceeding two years with or wuthout hard labour.^ 
 And if the driver or rider shall bv necrligence or wilful 
 misbehaviour cause hurt or damage to any person, or ride 
 furiously, so as to endanger life or limb of passenger, he 
 shall, in addition to any civil action, be fined five pounds.''^ 
 
 Negligence in carrying 'passengers in ships. — As passengers 
 in a railway or land conveyance have a remedy for careless- 
 ness in driving wliich leads to personal injury, so those 
 in ships have similar remedies. But the peculiar situation 
 of a passenger of a ship somewhat varies the rules of law, 
 which usually guard others from danger. As ships re- 
 quire a pilot in certain places, and the captains are com- 
 pelled by law to em])lt)y one, it is reasonable that when 
 the ship is under the i)ilot's charge, and such pilot is 
 negligent, and thereby causes injury to a passenger, the 
 owner of the ship should be exempted from all respon- 
 sibility to such passenger, unless where some of. the ship's 
 crew, in their respective departments, were also negligent, 
 
 > 24 & 25 Vic, c. 100, § .S.5. ^ 5 & 6 Wil. IV. c. 50, § 78.— Furious 
 riding is here included also ; Williams v Evans, 40 J. P., 358.
 
 CH. n.] INVITING INTO PANGEROaS PRKMISES, 2G3 
 
 and jointly contributed to tlie injury.^ The pilot is not 
 deemed a fellow -servant of the crew ; and hence, if he is 
 himself injured by the negligence of the crew, he can sue 
 the owners for negligence.^ Where a passenger is in a 
 ship Avhich comes into collision with another sliip, and 
 there is negligence on board of both, the passenger 
 cannot sue the owners of the other vessel, but must con- 
 fine his remedy to the owner of his own vessel, the rule 
 being the same as in case of rival coaches racing.^ And 
 when numbers of passengers are injured, and they them- 
 selves, or their representatives, claim damages, the liability 
 of the owners is subject to some limits.* Moreover, a 
 great body of regulations is contained in the Merchant 
 Shipping Acts, the beginning and eml of which is nothing 
 else but the ultimate security of human life, to which is 
 added also some regard to the safety of property. But as 
 these are remote from the immediate object of personal 
 security of the individual passenger, a more detailed 
 account of such regulations belongs properly to another 
 division of the law, entitled " The Security of Contract." 
 
 Bisk of invitinc) j?ers07is to mUr inemiscs. — Persons 
 entering premises and receiving injury are sometimes 
 entitled to redress. Here a distinction arises between 
 guests and business visitors. It is the duty of the 
 occupier of private premises, to which the public are 
 invited to resort, or to which they may resort on lawful 
 business or pleasure, to keep such premises in a state of 
 repair sufficient to prevent injury being received. But a 
 clear distinction nmst be made between trespassers, or 
 mere licensees, or guests, or servants of the occupier on the 
 one hand, and those who go upon the premises by invitation 
 in course of business that concerns such occupier on the 
 other hand. In the former case the trespasser, or guest, 
 or servant, is supposed to take care of himself, and run all 
 risks of the place ; in the latter case the occupier is bound 
 to take care of the business visitor and caution him ot 
 every danger not patent to the senses.'^ A person also 
 who is allowed to take a short cut through dangerous 
 
 1 17 & 18 Vic. c. 104, § 388 ; The lona. L. R., 1 P C. 420 ; Tlie 
 Calabar, L. R., 2 P. C. 238. 2 Smitli v Steele, 44 L. J., Q. B. (iO. 
 3 See ante p. 253. " 17 & 18 Vic. c. 104, § 614. ^ Soutlicotev 
 Stanley, 1 11. & N. 247.
 
 264 OF THE SECURITY OF THE PERSON. [ch. u. 
 
 premises, tLe danger of which is visible, has no remedy if 
 he is injured by that danger, for he is in the class ot 
 licensees, and shares the same risks as guests and servants.^ 
 When, however, one goes upon another's premises by invi- 
 tation in course of the business of the occupier, the latter 
 is deemed bound by law to take reasonable care, that the 
 invited party shall not fall into a trap or a dangerous 
 place without being warned. Thus it is with a gasfitter 
 ordered to do repairs in a sugar refinery and falling through 
 a shaft.^ So where a passenger enters a railway station 
 or ship to start on a journey, and falls through a trap-door.^ 
 And so where a railway guard, looking out of the window, 
 has his head shattered by a bridge made inconveniently 
 narrow, on a railway which his company lawfully use.* 
 
 Negligence in keeping of premises n^ear higlnvay. — Another 
 class of cases in which negligence is implied or easily pre- 
 sumed is where property adjoining a highway is in a state 
 of dangerous disrepair, which gives rise to an injury to a 
 passenger. This is founded on the principle that all persons, 
 who have premises adjoining a highway, are bound in some 
 way to protect these premises, so that those who are law- 
 fully passing along the highway may not fall into a trap. 
 The object of the rule is to secure the public right of 
 passage along such highways, so that in pursuit of tlieir 
 occupations people may not be suddenly interrupted by 
 some cause against which ordinary care cannot guard 
 them. Such a rule may be considered first as regards land 
 and rural situations ; and secondly as regards occupiers 
 of houses in streets and crowded places, the latter state 
 of facts being somewhat more complicated, though the 
 principle is not different. 
 
 Negligence near highways in rural places. — Where a high- 
 way is on a level with the adjoining lands, though there is 
 no obligation on the owner to fence the side of the high- 
 way, yet whenever there is any excavation adjacent to the 
 highway artificially made, whether in the form of a ditch 
 or a pit, then the duty arises on the owner to fence this 
 excavation. The reason is, that the public have a right 
 
 ' Bolcli V Smith, 7 H. & N. 73G ; Wilkinson v Fairric, 1 H. & 0. 63;!. 
 2 Iiidcrmaiir v Dames, L. R., 1 C. P. 274 ; 2 C. P. 311. ^ -John 
 
 V Bacon, L. R., 6 C. P. 437 ; Pickard v Smith, 10 C. B., N. S. 470. 
 •* (irabam v N. E. R. Cu., 18 C. P., N. S. 229.
 
 CH. 11.] DAX(iEROUS PREMISES IN STREETS. 205 
 
 to pass along the highway at all hours of the day and 
 niglit, and that, whether they are blind or lame, are careful 
 or less careful ; so that, unless the adjacent land be in sucli 
 state that they can use the highway without the risk of 
 stumbling and injuring themselves, such user would only 
 T)ecome a snare to them. But this obligation of the owner 
 of the adjacent laud extends no further than the side of 
 tlie highway, so that when the excavation is some distance 
 from the highway, this obligation ceases to govern him. 
 Thus if a passenger lawfully using the highway fall into 
 an excavation substantially adjoining, and which is not 
 fenced, he may sue the occupier of such land ; whereas if 
 he had strayed from the highway and become a trespasser, 
 and then fallen into a pit at some distance, he would have 
 no similar remedy, for it is impossible to undertake the 
 care of trespassers.^ And the question is thus often brought 
 round to this, what is meant by an excavation " substantially 
 adjoining " the highway ; and this is a question of law and 
 partly of fact, which the judge or court can decide for itself^ 
 And because passengers so often stray at a distance irom 
 highways, and suffer damage which has no redress for the 
 above reasons, the foresight of the legislature has been 
 shown in making it a punishable offence for the owners 
 of abandoned mines not to fence securely old shafts, which 
 are the frequent cause of death to unsuspecting trespassers 
 and travellers.^ 
 
 Negligence in jjremises adjoining streets. — The safety of 
 passengers in streets and crowded places is still more 
 exacting on adjoining occupiers, owing to the greater 
 variety of dangers. The civil law indeed made the oc- 
 cupier of a house responsible for damage caused to pas- 
 sengers by anytliing thrown nut of the upper part of the 
 house by an inmate, though the occupier had no knowledge 
 or concern in it.* Eut we are more critical and discrimi- 
 nating, and require to know somewhat more of the circum- 
 stances," before we attach so sweeping a liability to any 
 
 1 Hardcastle v S. Yorkshire R. Co., 4 11. & N. 67 ; Barnes v. Ward. 
 9 C. B. 392 ; Hounsell v Smith, 7 C. B., N. S. 731. - Binks v S. 
 Yorkshire R. Co., 3 B. & S. 244. In that case 14 feet intervened, 
 ail J the court held that the excavation did not "substantially adjoin." 
 
 3 35 k 36 Vic. c. 76, § 42 ; 35 & 36 Vic. c. 77, § 13. " Band., 
 
 b. 9, 413; Just. List. 4, 5, 1 ; dejecti effusive actio.
 
 2fi6 OF THE SECURITY OF THE PERSON. [ch. ii. 
 
 man ; and indeed, the ancients having no juries to solve 
 every complication of negligence, their courts were obliged 
 to lay down hard and fast lines of evidence which do not 
 hear examination in modern times. In our law a case 
 occurred where a ladder used in an upper story slipped 
 and broke the window, and a piece of glass fell and hit a 
 man employed in the street below, and the court held that 
 there was i\o prima facie evidence of negligence.^ Never- 
 theless those occupiers of houses and premises adjoining 
 a street are very strictly looked after, and bound by the 
 law to take positive precautions against the likelihood of 
 danger to passers-by from anything met with upon and 
 connected with the premises. Shutters and swing-doors 
 and cellar-flaps must be .secured or safely bolted, and 
 chimney-pots hrmly fixed. Thus where a barrel of flour 
 falls from an upper window of a store, this is deemed 
 p)rimd facie due to some act of negligence in the occupier 
 or his servants, and unless clearly explained away, and the 
 responsibility shifted to some other shoulders, will inevit- 
 ably bring home liability to the occupier.^ And even 
 where a cellar door was so loosely fastened that children 
 were naturally tempted to play with and upset it, and m 
 bring injury on strangers passing, the occupier has been 
 held liable for this thoughtless but childish act.^ And so 
 where a lamp projecting from a house fell on a passenger 
 owing to some negligence in tlie person, however compe- 
 tent, who last rep'ciired it, the occupier of the premises 
 was held liable.* And a new occupier coming to premises 
 adjoining a street does not escape liability by saying, that 
 he has merely used the premises as he found them, ibr 
 the liability is in some sense indelible, being imposed on 
 the occupier for the time being for the protection of the 
 public passing by, and to whose safety changes in owner- 
 ship and occupation are altogether irrelevant.^ And even 
 a tenant at will is subject to the same liability.^ And the 
 nominal tenant is liable, though he has not yet entered, 
 but has merely left tlie premises in the hands of a builder 
 
 1 riiggs V Meynard, H. & R., 581. 2 Byrne v Boodle, 2 H. & C, 
 722. 3 Daniels ?; Potter, 4 C. k P. 202. * 'J\arryr Asliton, 45 
 
 L J , Q B.260. '^ Barnes 7) Ward, 'J C. B. 420 ; Cotipland r Ilurd- 
 in^hani, 3 Camp. .'598; Pickard v Sniitli, 10 C. B., N. S. 470. 
 « R. V Watts, 1 Salk. 357.
 
 en. II.] NEGLIGENT ACTS ON HIGHWAYS. 267 
 
 to finish.^ But if the landlord and not the occupier oi 
 jiremises has contracted to do the repairs, lie will often be 
 the person liable for a defective grating by which a pas- 
 senger is injured.- And in such cases a nuisance or active 
 negligence is to be distinguished from a mere projection 
 or an apparent encroachment on the highway, such as door- 
 steps above the level of the street ; for these may be no 
 part of the highway at all, though owing to their position 
 incidentally a source of danger to those using it.^ And 
 for a like reason, though a ditch run alongside a highway 
 and be dangerous in the dark, there may be no obligation 
 on anybody to fence off that ditch.* 
 
 Negligent acts on highways. — -And with the same object 
 in view, namely, the safety of passengers, the legislature 
 has supplemented the deficiencies of the common law by 
 enacting, that no persons shall sink a pit or shaft, or erect a 
 steam-engine within twenty-five yards, nor erect a windmill 
 within fifty yards, of a highway, unless these things are 
 properly screened, so that they may not be dangerous to 
 passengers, horses, and cattle.^ Locomotive steam-engines 
 are also subject to definite restrictions as to use for a like 
 reason.*^ So laying timber, stone, or rubbish to the injury 
 or personal danger of any person travelling is a penal 
 offence.'^ And so is firing or throwing any fireworks on or 
 into any highway or public place.^ 
 
 Occupiers of 23rivate roads. — The liability of the occupier 
 of a private road, to those who travel on it, is the same as 
 if it was part of his premises ; for if he invite persons to use 
 it as a highway, or means of access to his house or ship, 
 the duty lies upon him to make it reasonably safe.^ 
 
 1 Hadley v Taylor, L. R., 1 C. P. 53. ^ Gaudy v Jubl.cr. 
 
 B. & S. 38'J. ^ Fisher v Prowse, 2 B. & S. 770 ; Rul)l)ius r Junes, 
 
 15 C. B., N. S. 221. 4 Cornwall v Metrop. Sewers, 10 Exch. 771. 
 
 6 5 & 6 Wil. IV c. 50, § 70 ; 27 & 28 Vic. c. 75. The penalty is 
 five pounds. Steam plon.<;hing--nKichines are excepted subject to pre- 
 cautions, 28 & 29 Vic. c. 83, § G ; 34 & 35 Vic. c. 95. This enactnuMit in- 
 cludes a portable steam-en.i^ine on wheels. — Smith v Stokes, 4 B. & S. 84. 
 
 « 24 & 25 Vic. c. 70, § IS ; 28 & 29 Vic. c. 83. 7 5 & 6 Wil. IV. 
 c. 50, § 72. The penalty is forty shilhnQ-s. 
 
 8 38 & 39 Vic. c.'l7, § 80. The penalty is five pounds. To let otl' 
 squibs, guns, or pistols within fiftj^ feet of the centre of a highwa}', 
 subjects to a penalty of forty shillings ; 5 & (i Wil. IV. c. 50, § 72. 
 
 » Corbv V Hill, 4"C. B., N." S. 55G ; Smith v London Docks, L. R.,. 
 3 C. P. 326,
 
 ?68 CF THE SECURITY OF THE PEESON. [ni. ii. 
 
 Negligence in not repairing highiuays. — Another source 
 of personal injuries is the defective state of repair in the 
 highways on which the pubHc travel. And here again a 
 distinction may be noticed with regard to accidents and 
 dangers caused by the nonrepair of highways, that is to say, 
 the mere passive neglect of the surveyor or local board, or 
 of whoever has the power and duty to repair them. Inas- 
 much as the proper remedy for nonrepair of a highway is 
 an indictment against the parish, the vigilance of all is 
 said to be engaged in enforcing this remedy. Hence if, 
 through the neglect to repair, a hole exists, which gives 
 rise to an accident or injury, the sufferer is not entitled to 
 hold the surveyor or local board personally liable. And 
 no one indeed is so, when no personal negligence is mixed 
 up with it ; for the legislature has deemed the remedy by 
 indictment sufficient to protect all against any such con- 
 tingency and to keep the parish functionary up to his 
 duty.^ It is true that the wdsdom of tliis rule is by no 
 means self-evident, for if a parish can afford to bear 
 the expense of repairing a highway, it might equally well 
 afford to bear the expense of the usual risks, such as indi- 
 viduals in their own case incur of not repairing premises. 
 But the only reason given by the courts for the rule is, 
 that because the law has found what is assumed to be an 
 appropriate machinery for keeping highways in repair, 
 namely, an indictment, the parish ought not to be liable 
 to anything resembling an action of negligence, for all are 
 equally interested in enforcing the repairs. Hence, tbe 
 parish by this reasoning not being liable, its servant, the 
 surveyor, is also not liable, and nobody is liable ; so that 
 any pei'son passing by chance, and breaking his leg, owing 
 to the highway being in disrepair, has no remedy against 
 
 Statutory Occupiers. — Public coniinissioners or statutory trustees 
 wlio occupy dan^^erous premises are lialile, whatever be the mode of 
 appropriatinj? their income, in the same way as private occupiers, 
 and have no hu-ger or less habilities in respect of accidents and 
 dangers occurring on their premises or on liighways wliich are 
 vested in them.— Mersey Poard v (libbs, L, E., 1 H. L. C. [)'.] ; Coe 
 V Wise, I.. R., 1 Q. B. 711. and 5 B. & S, 440 ; Foreman v Canterbury, 
 41L.J., QB. 138. 
 
 ' Young V Davis, 7 H. & N. 760 ; 2 11. & C. 197 ; Gibson v Mayor 
 of Preston, L. R., 5 Q B. 218; Mackinnon v Penson, 8 lUxdi. 'Sii) ; 
 Parsons v St. Matthew's, L. R., 3 C. P. 62.
 
 err. II.] DANGERS FROM VICIOUS ANLMALS. 269 
 
 anyone. Xotwithstaiidiug tliis rule, however, if a gratiii'^ 
 or other part of a highway belongs in property to a local 
 board or commissioners, who stand in a different position 
 from tlie parish, tlien these are liable as if they were the 
 owners of premises adjoining the highway, and such premises 
 were not kept in proper repair.^ And the surveyor may 
 make himself liable for negligence during the repairs, if he 
 act himself as the contractor, and is personally negligent.^ 
 
 Negligence in keeping vicious dogs and animals. — Another 
 usual source of danger to the person arises from the prac- 
 tice of keeping animals, wild and tame, but especially dogs. 
 There is nothing deemed positively illegal in keeping any 
 animal, and some of the domestic animals are almost part 
 of many a common household. In such cases the law does 
 not go the length of treating the animal as a kind of 
 servant or agent of its owner, so as to make him responsible 
 for its doings as if it and he were identical, and had one 
 mind and purpose. The utmost length the law goes is to 
 give a remedy for injuries done by the animal, when the 
 owner has been guilty of any negligence in keeping it, and 
 whicli negligence may Mrly be deemed the cause of such 
 injury. It is necessary however on this subject to make 
 one or two distinctions, more especially as the popular idea 
 as to responsibility differs widely from that whicli the law 
 defines. 
 
 There is a distinction in the outset between wild or 
 savage animals and those which are tame and mild in their 
 general temper. The former are such as lions, bears, serpents, 
 monkeys, though these are often capable of being tamed 
 to a certain extent. The latter class includes all domestic 
 aiiimals, dogs, cats, and cattle. And the distinction consists 
 in this, that in the former case a savage or mischievous 
 temper is presumed to be known to their owner and to all 
 men as a usual accompaniment of many wild animals ; and 
 hence a positive duty is cast on the owner to i)rotect the 
 public against the mischief resulting from such animal 
 being at large. In the latter case no mischievous disposi- 
 tion is presumed; but if any peculiar tendency to mischief 
 or injury is found to belong to the animal, and is made 
 known to the owner as a fact, then a like positive duty is 
 
 1 White V Hindley Local Board, 44 L. J., Q. B. 114, * Pendlebury 
 V Greenhalgh, 45 L. J., Q. B., H. L. 3.
 
 270 OF THE SECURITY OF THE PERSON. [cH. ii. 
 
 cast on him to guard the public against injury from this 
 proclivity. 
 
 The general rule then is, that wild animals of a vicious 
 dispositiuu must be kept by the owner in such a place as 
 not to allow them the opportunity of givijig vent to their 
 temper and injuring mankiud ; at least if he fail to do 
 this, he must bear the entire risk. Indeed such risk may 
 approach the risk of murder. If the owner wilfully let 
 loose a wild beast, which kills a human being, he will be 
 guilty of murder: if he negligently allow the beast to 
 escape, he may in some cases be guilty of manslaughter. 
 And if the animal do injury to mankind, an action will lie 
 against the owner, and it is not necessary to prove that the 
 owner knew of the injurious disposition of the beast, for 
 that is common knowledge ; nor that he kept it negligently, 
 for whether lie did so or not, he is assumed to take the 
 risk.^ In the action for injury caused by a savage or a wild 
 animal, the ground therelbre is, that the owner wrongfully 
 kept the animal with knowledge of its propensity, and that 
 it injured the plaintiff.^ And it is not necessary to allege 
 that it was kept negligently, it being at once presumed that 
 he kept the animal at his own peril. 
 
 But where the injury is done by a tame animal, that is 
 to say, one of a class which is not usually vicious, but 
 which happens, notwithstanding, to have a vicious pro- 
 pensity known to its owner, and is kept negligently, the 
 ground of liability is the same as in the wild and savage 
 animals, except that the owner's knowledge of the vicious 
 propensity havmg been acquired by such animal must be 
 alleged and proved against him.^ And when all that can 
 be proved is, that a servant of the owner or member of his 
 family was cognisant of the vicious propensity, then the 
 owner will not be bound by his servant's or relative's 
 knowledge, unless the latter had the charge of the dog, or 
 such charge was fairly included in part of the servant's 
 duties at the time.-* This knowledge may, however, very 
 well be inferred from the circumstance that the owner had 
 
 ^ Jenkins v Turner, 1 L. Rayni 110. 2 May v Burdett, 9 Q. B. 
 101. a Ibid. ; Cox v Burbridg-e, 13 C. B., N, S. 430. " Stiles v 
 Cardiff C(i., 33 L. J., Q. B. 310 ; Oladinan v Jolirisoii, 36 L. J., C. P. 
 153 ; Applebee v Percy, 43 L. J., C. P. 3G5 : Baldwin v Casella, 
 41 L. J. Exch. 167.
 
 <;h. II.] DANGERS FROM MAD DOGS. 271 
 
 warned persons against the dog,^ or knew that it had 
 before attempted to bite people.^ And it is always a 
 good defence that the dog does not belong to the occupier 
 of the premises where the mischief was dune, though it 
 may liave haunted such premises.^ 
 
 But though the person injured by a dog has a remedy 
 against tlie owner in the above circumstances, an exception 
 exists where the person injured was a trespasser, or where 
 the dog was kept in the owner's own premises during the 
 night to protect t.liem.'* On the other hand, it is no gruund 
 of defence to an action for injury inflicted that the dog was 
 kept in premises during the day if it was kept in such a 
 position that it could attack a person who calls at the 
 premises on lawful business, whether the business is that 
 of the owner or of the visitor.^ Nor does the owner 
 escape liability for keeping a savage dog in such a situation 
 by merely putting up a notice to " beware of the dog," if 
 the visitor either did not see the dog or could not read ; 
 and it is always extremely difficult to prove special kiiow- 
 ledf^e of this kind conveyed to the visitor. 
 
 DangcroiLS and mad dogs. — But the law is not satisfied 
 with guarding mankind by compelling owners in some 
 cases to pay damages. Even though a dog has not actually 
 bitten or injured a human being, yet the legislature, in 
 order still further to protect mankind against the pro- 
 bability of such attacks, has, in case of a dog which is 
 dangerous and not kept under proper control, provided 
 those facts have been brought to the notice of justices 
 and of the owner, imposed on such owner a penalty of 
 twenty shillings for every day he fails so to keep it under 
 control.^ Or if the owner has already so failed, tlie justices 
 nuiy in their discretion themselves order the dog to be 
 
 1 Judjcre v Cox, 1 Stark. 285. = Worth v Gillint;-, L. E., 2 C. P. 1. 
 
 3 Smith u Great Eastern R. Co., L. R, 2 C. P. 4/'i'he necessity of 
 knowlcdQe in the owner of <i domestic animal's vicious propensity 
 as an ingredient in the ri.ij^lit of action is dispensed witli by statute 
 in the case of dogs worrying sheep and cattle, 28 & 29 Vic. c. 60. 
 (This belongs to title, " Security of Property ; ") but the rule continues 
 in force as to injuries done to mankind. 
 
 ^ Brook V Cdpeland, 1 Esp. 302. ' Larch v Blackburn, 4 C. el' 
 P. 3U0; M. & M. r)05 : Curtis /- Mills, 5 C. & P. 4«'J ; Charlwood v 
 Greig, 3 C. & K. 48. « 34 & 35 Vic. c. 56, § 2.
 
 212 OF THE SECURITY OF THE PERSON. [CH. ii. 
 
 killed.^ And Mdien a mad dog is known to be at large, the 
 justices, with a view to the same protection of mankind, 
 may order all dogs in the neighboiirliood to be during 
 a limited period kept imrler close control by their owners, 
 subject to a penalty of twenty shillings for disobedience of 
 such order.^ And in the merropolitan district, if any dog 
 has been proved to have bitten or attempted to bile any 
 person, the magistrate may, in his discretion, at once order 
 such dog to be destroyed.^ And in those towns subject 
 to the Towns Police Act, every person who suffers any 
 unmuzzled ferocious dog to be at large, or a dog suspected 
 of madness, is subject to a penalty of forty shillings.* 
 
 This subject as to how best to deal witli dogs biting man- 
 kind seems to have perplexed ancient legislators much. 
 Solon, the wisest lawgiver of his time, enacted that if a dog 
 bit a man, it was to be delivered up bound to a log of four 
 cubits long; and Plutarch thought this an admirable and 
 ingenious law. And the Eomans in their Twelve Tables 
 ado]jted the rule also.^ Plato also thought it a wise law, 
 that the owner of a horse or a dog should pay for the 
 injuries done by it to a neighbour, and apparently 
 negligence was no element in his view of the question.*^ 
 Put the wdsdom of antiquity was wholly outdone by the 
 AVelsh legislator of the twelfth century, who provided that, 
 alter the dog had bitten three persons, it was to be tied 
 to its master's leg and then killed." 
 
 Ivjurics caused to third jparties by servants. — When injury 
 or death is caused by a servant of another, the liability 
 attaches to the master in most of the cases of negligence, 
 provided the act which caused the injury was done in the 
 ordinary en)ployment of the servant as such, and was not 
 due to the servant's own wanton or nralicious conduct.^ 
 It is however extremely difficult to draw distinctions 
 between a servant's wilfulness or recklessness and his 
 net^ligence, and the master generally suffers for both indis- 
 criminately. Where, however, the distinction is brought 
 out and established by evidence, the court will give effect 
 
 1 Picl^ering v Marsh, 38 J. P. 078. 2 34 & 35 Vic. c. 56, § 3 
 s 30 & 31 Vic. c. 134, § 18. " 10 & II Vic. c. 89, § 28. s P]„t. 
 Solon. « I'lato, I)c Le,i,^ 1.. 11. '^ Am. L. Wales, Dimct. Code, 
 
 b. 2, c. 14. 8 Laugher (; Pointer, 5 B. & C. 554 ; Croit v Alison, 
 
 4 B. & Aid. 590 ; Seymour v Greenwood, 6 H. & N. 359.
 
 t^H. II.] INJUEIES BY SERVANTS. 273 
 
 to it by exempting the master in the former ease from 
 liability. Yet the mere fact that the master expressly 
 directed the servant not to do such acts is not of much 
 consequence, since it may be usually implied in the very 
 relation of master and servant, that the master never 
 engages or requires or authorises the servant to do M^rong- 
 ful acts to third parties.^ In short, errors of judgment 
 committed by a servant in the fair advancement of the 
 master's service are at the risk of the master, and nice 
 distinctions as to whether the servant was at the moment 
 within the strict line of such service are not favoured by the 
 law. For though it is obviously incorrect to say, that any- 
 thing the servant takes it into his head to do, however well 
 meant on his part, is for the benefit of the master's service 
 so as to make the master responsible on account of it, 
 yet in considering, whether a servant is at the time acting 
 in the course of his employment or beyond it, a reasonable 
 allowance is to be made for emergencies in which tlie 
 servant acts on the spur of the moment for the supposed in- 
 terest of the master, who in that case is equally liable.^ 
 
 Nefilicience of a servant acting on his own account or for 
 another master. — It sometimes happens, that the servant 
 combines his own business with that of his master, and 
 for example uses his master's horse for a service which is 
 exclusively his own. In such a case the master will not 
 be liable for injuries caused in driving his master's horse 
 during this interval, provided always that the fact is clearly 
 established, that it was the servant's own business in which 
 he was at the time engaged, and it was wholly independent 
 of the master's business, and was no mere error of judg- 
 ment arising from a confused perception of his duty.^ 
 
 The liability of a master for the injuries caused by his 
 servant is not only taken away by the act being wilful and 
 beyond the scope of the service, but also when the servant, 
 
 ' Limpus V London Oninibus Co., 1 H. & C. 526 ; Green v London 
 Omnibus Co., 7 C. B., N. S. 290 ; Storey v Ashton, L. R., 4 Q. B. 47G. 
 2 Goff V G. N. R. Co., 3 E. & E. 672 ; Walker v S. E. R. Co., L. R., 
 5 C. P. 640 ; East. C. R. Co. v Brown, 6 Exch. 327 ; Allen v L. & 
 b. W. R. Co., L. R., 6 Q. B. 65. 
 
 3 Patten v Rea, 2 C. B., N. S. 606 ; McManus v Cnckctt, 1 East. 
 106 ; Mitchell v Crasswaller, 13 C. B. 237 ; Storey v Ashton, L. R.. 
 4 Q. B. 476 ; Lamb v Palk, 9 C. & P. 631. 
 
 VOL. I. T
 
 274 OF THE SECURITY OF THE PERSON. [CH. ii. 
 
 though under temporary orders, is really acting as the ser- 
 vant of another party. This state of things occurs in such 
 employments as that of a livery-stabler or innkeeper, 
 whose servant is sent with horses to drive the carriage of 
 another. In such cases the master of the driver is liable 
 for the driver's injurious acts, though the driver may 
 he acting for the time under orders of the hirer, and 
 whether or not the coach belongs to the hirer.^ It makes 
 a difference however if the hirer of the servant himself 
 assumes the management of the horses, for then the 
 liability of the master of the driver ceases, and that of 
 the hirer himself supersedes it.- 
 
 Ho 10 servants acts arc clistingnisliccl from tliose of contrac- 
 tors. — The case of liability for injuries done by servants 
 differs from cases where work has been done by a contrac- 
 tor or third person capable of exercising an independent 
 judgment as to his own mode of conducting business. 
 Hence though a master might have been liable for injuri- 
 ous acts done in course of a work carried out by his'own 
 servants, yet if such work Las not been done by such 
 servants, but has been contracted for and is done by a third 
 party for the master, then the master is no longer liable, 
 the contractor being liable for his own servants and their 
 mistakes.^ And in doubtful cases, the question is, whether 
 the person charged had any control over the person who 
 did the injurious act."* So if the contractor has finished 
 his work and a defect afterwards come to light causing 
 injury, it may be too late to fix liability on him.^ 
 
 The liability, it is true, by virtue of the relation of 
 master and servant, must cease when the relation of master 
 and servant itself ceases to exist.^ Yet in some cases an 
 owner is liable even for the neglect of his contractor. 
 
 "O" 
 
 1 Laujrlier v Pointer, 5 B. & C. 572 ; Dalyell v Tyrer, E. B. E, 
 899 ; Quarman u Burnett, 6 M. & W. 499 ; Smith v Laurence, 2 M. 
 & R. 1. 
 
 '>■ Per Parke, B., Quarman v Burnett, 6 M. & W. 499 ; Mac- 
 Lauirlilin v Pryor, 4 M. & Gr. 48. 
 
 3 Murphy v Caralli, 34 L. J., Exch. 14 ; Rapron v Cnbitt, 9 M. & 
 W. 710 ; Malliffan v Wed^e, 4 A. & E. 737 ; Steel v S. E. R. Co., 16 
 C. B. 556 ; Butler v Ilniiter, 7 II. & N. 826 ; Hole v Sittingbourn E. 
 Co., 6 H. & N. 488 ; Overton o Freeman, 11 C. B. 867. 
 
 " Blake v Tliirst, 2 H. &. C. 20. & Hyams v Webster, L. K., 4 
 Q. B. 158 ; 9 B. & S. 1016. « Quarman v Burnett, 6 M. & W. 499.
 
 ca. II.] INJURY BY ONE SERVANT TO ANOTPIER. 275 
 
 Thus, in all cases where a man is in possession of fixed 
 property, he must take care that his property is so used 
 and manae;ed, that other persons are not injured, and that 
 whether his property be managed by his own immediate 
 servants, or by contractors or tlieir servants. The reason 
 of this is, that the injuries done upon land or buildings 
 are in the nature of nuisances, for which the occupier 
 ought to be chargeable when occasioned by any acts of 
 persons whom he brings upon the premises. The use of 
 the premises is confined by the law to himself, and he 
 should take care not to bring persons there who do any 
 mischief to others.^ And the same kind of liability extends 
 to the owner of a stand at a racecourse, which he invites 
 the public to use for payment of a price ; and though the 
 contractor was competent, yet if the stand was defective 
 and has injured a spectator, the owner or person receiving 
 money for use of the stand is liable for such injury.- 
 
 Injuries caused hy servant to felloio servants negligently. — 
 Though a master is liable to third parties for injurious acts 
 done by his servants in course of their ordinary employ- 
 ment, another question is, whether and how far the master 
 is liable to his own servants for injuries done by one of 
 these servants to another of the servants in the same 
 employment. On this point the rule is, that a master is 
 not liable to one servant for the negligent injuries caused 
 by a fellow servant. Thus it was, where the two servants 
 were both engaged in driving and managing their master's 
 van, and an accident occurred to one from overloading ; ^ 
 where two were filling sugar-moulds, and hoisting them up 
 by a machine ; ^ where two railway trains of the same 
 company came into collision through the negligence of the 
 servants on one or both railways ; ^ where one was a plate- 
 layer, and the other loaded trucks ; ^ where one was a 
 carpenter mending the roof, and the others were porters 
 moving carriages.^ 
 
 This rule as to non-liability of the master for injuries 
 
 1 Lauijher v Pointer, 5 B. & C. 547. 2 Francis v;Cockrell, L. R., 5 Q. 
 B. 501 ^9 B. & S. 950. » Priestley v Fowler, 3 M. & W. 6. •« Dynen 
 V Leach, 26 L. J., Exch. 222. & Ilntchinson v York. & C. R. Co., 
 5 Exch. 343 ; Wiiigett v Fox, 11 Exch. 832. « Snelgrove u L. B. & 
 R. Co., 16 C. B.,'N. S. 669 ; Feltham v England, L. ]l,, 2 Q. B. 33. 
 7 Morgan v V. of Neath, 5 B. & S. 570. 
 
 T 2
 
 276 OF THE SECURITY OF THE PERSON. [cu. n. 
 
 by negligence of one servant acting with another fellow 
 servant, does not depend on the grade of one servant being 
 higher than that of the other servant, as in the case of a chief 
 engineer in a steamer, engaged with a common sailor in 
 working a winch and raising the screw ; ^ a railway-guard 
 injured by the negligence of a ganger of the plate-layers ; ^ a 
 deputy or vice-principal working with an ordinary servant.^ 
 
 It was, however, at first thought that this rule as to two 
 fellow servants was confined to the case where both were 
 employed at the time in one common employment or 
 department, and were coUaborateurs ; but this distinction 
 has been abandoned as untenable. And it is now deemed 
 enough that both servants were in the same employ- 
 ment.^ 
 
 Reason why master not liable for injury hy one servant to 
 a fclloiv servant. — The reason which has been given for 
 this law is, that if the master were liable for every accident 
 to a servant his liability would be infinite ; whereas it is 
 no hardship to the servant, for, if the servant do not like 
 the risk of the master's service, he can decline it. Hence, 
 while it is reasonable, that the master should be so 
 identified with the acts of his servant as to be liable to 
 third parties, it is not reasonable that he should be liable 
 for acts done by one of two servants to the fellow servant, 
 seeing that each has so much power to injure the other, 
 and so much opportunity to protect himself against the 
 other's injuries and neglects. In the latter case, therefore, 
 each servant must look after himself, and takes the risk 
 of a fellow servant's negligence, otherwise the master's 
 liability for all such contingencies would only act as a 
 premium on the servant's negligence. And the decision 
 on this subject arrived at by the courts by reasoning from 
 first principles has been said to be one of the most 
 important and useful ever made in the law.^ The rule 
 equally applies where a volunteer assists the servant and 
 both are engaged in a common operation, in which case 
 the volunteer is in the same relative position as a hired 
 
 1 Searle v Lindsay, 11 C. B., N. S. 429. 2 Waller v S. E. R. Co., 
 2 H. & C. 102. ^ Howells v Laiidor Co., L. R., 10 Q. B. fi2 ; Felthain 
 V Ens^^land, L. R., 2 Q. B. 33 ; Cullaglierw Piper, IG C. B., N. S. GG9. 
 4 Wilson ■?; Merry, L. R., 1 H. L., Scot. Ap. 326. ^ Vosew Lane. R. 
 Co., 2 II. & N. 728 ; Piiestley f Fowler, 3 M. & W. 1.
 
 on. 11.] EXAMPLE OF JUDGE-MADE LAW. 277 
 
 servant would have been.^ Yet if such volunteer be at 
 the time also acting for another master, or in his own 
 business, and with assent of the master assisted, then he 
 will be treated as a stranger, and not as a fellow servant 
 so far as regards the rule mentioned.^ 
 
 Tlie discovery of this ride as to felLovj servant's negligence, an 
 example of judge-made law. — This rule as to the non-liability 
 of a master for injuries caused by the negligence of one 
 servant to his fellow servant may be said to be a discovery 
 only of the last generation.^ It is one of the most remarkable 
 illustrations of the way in which new doctrines are developed 
 by judicial reasoning. This process has generally been by 
 lawyers, and even by laymen, boasted of as the pride of 
 the human intellect, though it was denounced by Eentham 
 and Austin as a fraud on the legislature and a scandal to 
 the public. The rule in question, the fruit of that reasoning, 
 when once found and earmarked, has been since recognised 
 as the soundest sense, and has passed current in the 
 business of life like a coin of the realm or a bale of goods 
 having a fixed value in the market. Yet whichever theory 
 of the common law be accepted — whether common law is 
 only the remains of old statutes worn out by time, or a 
 collection of general maxims of wisdom which must be 
 applied to ever-varying circumstances — it must be conceded, 
 that this specific product of reasoning was unknown to 
 Bractou, to Coke, and Hale, to Holt, to Camden, and 
 Mansfield ; and while it lay hid in the earlier ages, none of 
 these oracles of the law had the least glimmering of it as 
 a practical conclusion. And yet so clear and self-evident 
 does it now seem, that we are bound to assume, that, if 
 those judges had set themselves to work out the same 
 problem with their own materials, they would have solved 
 it in the same way. This is only another mode of showing 
 how inevitable and beneficial a process that is, which has 
 been ignorantly denounced as judge-made law. It is 
 nothing else but that unity of thought and reasoning which 
 links age to age, and keeps up a body of practical wisdom 
 
 1 Degg V Midland R. Co., 1 IL & N. 773 ; Potter v Faulkner, 1 B. & S. 
 800. 2 Warbnrton v G. W. R. Co., L. R., 2 Excb. 30 ; Holmes v 
 N. E. R. Co., L. R., 4 Exch. 254 ; Wright v L. & N. W. R. Co., L. 
 R., 10 Q. B. 298 ; 45 L. J., Ap. 570. ^ Priestley o Fowler, 3 M. & 
 W. 1 (a. d. 1837).
 
 278 OF THE SECURITY OF THE PERSON. [en. ir. 
 
 under the name of law, treating it as a great inheritance, 
 of which each judge is in turn but the steward, and which 
 he passes on with all its current accounts, its undeveloped 
 mines of treasure, and its accretions, to his next successor. 
 The problem in the present instance arose thus : Given that 
 a servant is to some extent the agent or hand of the 
 master. Given that in some contracts one party would be 
 ready to insure the other against all risks, and in some he 
 would not. Given that if two strangers come into collision, 
 and one negligently breaks the other's leg, he must pay 
 compensation for that injury. Given that there are some 
 accidents for which nobody is to blame, and for which 
 no compensation is recoverable. Given that each man is 
 the most vigilant guardian of his own personal safety, and 
 no third party can protect him so well as himself. Given 
 that none would be so foolish as to guarantee another 
 against all the consequences of that other's negligences and 
 mistakes in all circumstances. Given that it is unfair to 
 expose another to risks which he does not know of and 
 has never meant to undertake. 
 
 The new combination of facts calling for a solution was 
 this : If a master have a thousand servants, and while two 
 of them are moving a log of wood, one by his negligence 
 breaks the other's leg, is the master to pay compensation 
 for the broken leg of that servant, or is he not ? This was 
 the practical point to be ascertained. Each and all of the 
 above axioms and truisms was familiar to all the old 
 judges, but they had never had these specific facts upon 
 which to apply them. Yet it was only by setting one of these 
 propositions against another, balancing them, weighing, 
 sorting, and compounding them, that the court in 1837 
 arrived at its conclusion, just as Coke and Hale and Mans- 
 field would have arrived at theirs. The chief reasons that 
 prevailed were, that, if the master was to be liable, he 
 would be setting himself up as an Accident Assurance Bank, 
 guaranteeing his servants against the consequences of their 
 (jwn negligence and folly, and giving each a premium for 
 his carelessness : whereas, each servant, knowinfj all that 
 the master knew, having it in his power to defend himself 
 against danger better than the master could possibly teach 
 him — Iteing on the spot and able to stop at any moment 
 when danger threatened — it was more likely that he should
 
 on. II.] RISK OF TACKLE USED BY SERVANTS. 279 
 
 have all along intended to take this risk on himself than 
 that he looked to the master for his insurance. The court 
 therefore held that the master was not liable for the broken 
 leg caused by the fellow servant's carelessness. The con- 
 clusion, such as it was, is an example of judge-made law, 
 a result of fair reasoning and inference from admitted 
 rules and limitations, a balancing of conveniences and 
 inconveniences, such as all other reasoners use when 
 searching for a higher rule to comprehend some new 
 combination of facts. 
 
 How far servant has claim against master for injuries in 
 service. — But though tlie master is not bound to pay 
 damages to his servant who is injured by the carelessness 
 of a fellow servant, yet he is bound to use due care in 
 engaging for each servant proper fellow servants, who are 
 reasonably competent to discharge the duties of the 
 service.^ If this were not so, a careful serv^ant, however 
 careful, might be incapable of self-defence, if his m. ster 
 thrust him into companionship with unskilful and ill-con- 
 ducted and reckless fellow servants. 
 
 Jloia far master icarrants tackle v.sed hy servants. — A 
 master is impliedly bound to supply sound tackle and 
 machinery used in any dangerous servdce, and to do all 
 things, reasonably necessary, for its safe use by the 
 servants. Hence it follows, that if the servant is injured 
 by its unsafe state, the master is liable to the servant. 
 The master ought to know if the tackle is safe so far 
 as it can be made safe by reasonable examination;- as, 
 for example, where the tackle of a coal-pit or the shaft 
 is unsafe, and unfit for use of the men ; ^ or where 
 dangerous machinery, Avhich used to be fenced, has ceased 
 to be fenced.* But a master does not warrant a servant 
 against injiuies caused by his o\yu carelessness in doing 
 his work on the master's premises, the risk of all such being 
 impliedly taken by the servant, and especially as the 
 
 > Hutchinson v York. & C. R. Co., 5 Exch. 343. 
 
 2 Paterson v Wallace, 1 Macq., H. L. C. 748 ; Williams v Clouch. 
 3 H. & N. -258 ; Ashworth v Stannix, 30 L. J., Q. B. 183 ; Roberts r 
 Smith, 2 H. & N. 213 ; Skip v E. C. R. Co., 9 Exch. 223 ; Bartonshill 
 Coal Co. V Reid, 3 Macq., H. L. C. --^66 ; Id. v Macguiie, lb. 300. 
 
 3 Mellor V Shaw, 1 B. & S. 437. " Hohues v Clarke, 6 H. & N. 
 349 ; Couch v Steel, 3 E. i B. 4U2.
 
 280 OF THE SECURITY OF THE PERSON. [CH. ii. 
 
 servant's knowledge must be equal to the master's.^ A 
 servant is, in modern times, no longer compelled to serve, 
 and may exercise his discretion as to entering on the 
 service ; but when once he enters upon it, he must take 
 it with all its drawbacks.^ And though the master 
 
 O 
 
 warrants to some extent the tackle and apparatus used by 
 the servant, this applies only to dangerous employments, 
 for in ordinary affairs the servant is or ought to be as 
 good a judge of the sources of danger, and as well 
 able to guard against these, as the master. Hence also the 
 master is not liable for any defect in materials supplied 
 by third parties for the master's or servant's use. If, for 
 example, every tradesman who supjjlied the master with 
 bad materials, were liable to the servant, who suffered 
 some accident in using these, there would be no end or 
 limit to the number of actions brought. All such acci- 
 dents accordingly, as between master and servant, must 
 be treated as only the chances of the service.^ But this 
 rule has again been pushed to excess, and tlie owner of 
 a mine or a manufactory of dangerous machinery is now 
 absolutely bound by law to fence it, so as to guard against 
 accidents. The master will be held liable, if he fail to 
 obey this statute, unless indeed the servant with his eyes 
 open expressly accepts the risks.'* In such cases, accord- 
 ingly, the important point still is, whether the injured ' 
 person accepted such risk or not.^ The principle cannot 
 in any case be laid down, that the servant is entitled to 
 calculate on the master obeying this statute ; and though 
 it seems singular that a servant can practically dispense 
 with a statute by simply taking the risk on himself, it 
 must be recollected, that however stringent any statute 
 may be, it will never be able to guard entirely against 
 rash and wilful acts. 
 
 ' Brown v Accrington Co., 3 H. & C. 511 ; Assop v Yates, 2 H. & 
 N. 7G8 ; Seymour v Maddux, 16 Q. B. 332 ; Senior v Ward, 1 E. & E. 
 385 ; Morgan v Vale of Neath R. Co., 5 B. & S. 570 ; L. R., 1 Q. B. 
 145 ; Lavell v liowell, 45 L. J., C. P. 387 ; Allen v New Gas Co., 45 
 L. J., Excli. 6G8. 
 
 2 Bolch V Sniitli, 7 H. & N. 730. 3 Collia v Seldcn, L. R., 3 C. P. 
 495. " Vose vh.&Y. R. Co., 2 H. & N. 728 ; Holmes v Clark, 6 H. 
 & N. 349 ; Senior v Ward, 1 E. & E. 385. ^ Britten v G. W. R. 
 
 Co., 41 L. J., Exch. 99.
 
 CH. II.] NEGLIGENCE IN DANGEROUS TRADES. 281 
 
 Negligence of servants and masters in dangerous trades. — 
 To reduce tlie danger arising to servants and workmen 
 in mines and factories, the legislature has intervened to 
 supply some defects. In mines a single shaft is proliibited, 
 and two such means of outlet must be kept open to every 
 seam of the mineral worked by miners.^ And as an indirect 
 check on the carelessness of management, the owner must 
 give prompt notice of each accident causing personal injury 
 or loss of life to the local inspector.'^ And notice of any 
 likely source of danger given by the inspector must be 
 immediately attended to and remedied.^ And anyone who 
 wilfully commits an act reasonably calculated to endanger 
 the safety of peisons, or cause personal injury in a mine, 
 may be imprisoned for three months, besides being subject 
 to other remedies.^ 
 
 In factories, also, dangerous machinery must be securely 
 fenced, which is likely to cause bodily injury to the em- 
 ployed, and which any inspector points out to the owner's 
 notice.^ And the same as regards those parts of the works 
 which are peculiarly dangerous to young persons coming 
 in contact with themi'^ 
 
 And as manufactories for making and storing gunpowder 
 are more than usually dangerous, severe punishment 
 awaits all who commit acts calculated to endanger life. 
 The factory and its interior must be licensed, constructed, 
 and used according to strict and minute regulations calcu- 
 lated for safety of life, and inspectors are appointed to 
 watch all sources of danger.^ What clothes workmen shall 
 ■wear, what things of danger shall be taken inside, what 
 tools and ingredients may be used, are all specified. Gun- 
 powder is not to be hawked or sold in the street, or to 
 children, or unless in canisters marked ; it is not to be 
 conveyed except in safe packages. In harbours, railways, 
 and canals minute bye-laws regulate every step of the 
 custody and removal of this material. Any act done 
 wilfully or negligently wdiich is reasonably calculated to 
 
 J 35 & 36 Vic. c. 7G, § 20. 2 35 & 36 Vic. c. 76, § 39 ; 35 & 
 36 Vic. c. 77, § 11. 3 35 & 3g yic. c. 76, § 46; 35 & 36 
 
 Vic. c. 77, § 18. 4 35 & 3(3 yic. c. 76, § 61 ; 35 & 36 Vic. c. 77, 
 § 32. 5 7 & 8 Vic. c. 15, § 43 ; 19 & 20 Vic. c. 38, § 6. « 7 & 
 8 Vic. c. 15, § 20 ; 19 & 20 Vic. c. 38, §§ 4, 5. 7 33 ^ 39 yic. c. 
 
 17, §10.
 
 282 OF THE SECURITY OF THE PERSON. [ch. ii. 
 
 endanger life, is punishable either by fine or six months' 
 imprisonment.^ 
 
 Negligence of 'physicians and surgeons. — The same care 
 of the body, which is so great an object of the law, often 
 leads individuals to employ physicians and surgeons to cure 
 its wounds and ailments; and though this is matter of 
 contract, yet, inasmuch as it is more important for each 
 to know wdiat remedy is open to him for unskilful treat- 
 ment and consequent pain and injury than to seek a 
 remedy on the contract, some notice is here required of 
 these cases. The universal rule relating to such matters 
 is, that every person, who enters a learned profession, under- 
 takes to bring to the exercise of it a reasonable degree 
 of care and skill. He does not undertake, if he is a 
 solicitor, that at all events he shall gain the cause ; nor 
 does a surgeon impliedly undertake to use the highest 
 possible degree of skill ; but he undertakes to bring a fair 
 and competent degree of skill to bear on the case.^ If 
 therefore one suffers pain or death from the negligence of 
 those skilled operators, the main question involved will be, 
 whether the treatment showed ordinary professional skill, 
 and as to this the opinion of experts is usually brought to 
 bear. In this country the legislature has come to the 
 assistance of the common law by requiring all who practice 
 surgery and physic, at least as a profession, to be registered 
 as such, and this again is only possible after a degree of 
 knowledge and education have been attained, which is 
 the best guarantee against danger to human life.^ False 
 pretenders to this qualification are liable to a penalty.* 
 Nevertheless, as it may still happen that one who has no 
 such qualification may undertake and contract to effect a 
 cure, and possibly injure the body, the law also requires 
 that each adventurer as well as a licensed medical man 
 shall possess competent knowledge, and each is liable to an 
 action for negligence if he do] not bring such knowledge 
 to bear.^ 
 
 1 38 & 39 Vic. c. 17, § 79. 2 Lnnpliier v Pliipos, 8 C. & P. 479. 
 
 s 21 & 22 Vic. c. 90 ; 22 Vic. c. 21 ; 22 & 23 Vic. cc. 7, GG. 
 < 21 & 22 Vic. c. 96, § 40. 
 
 fi In ancient E,s;ypt physicians were paid hy the state, and they 
 liad fixed rules for treating diseases and administering physic ; and 
 il they adhered to the letter of the rule they were safe, but if they
 
 CH. Ti.] BODILY INJURY BY SPRING-GUNS. 2R3 
 
 Negligence, in selling poison^s. — The natural riglit of every 
 man to carry on any kind of business, and the inherent 
 tendency of all men to carry on that business in the way 
 most profitable to himself, regardless of tlie rights and risks 
 of others, has likewise induced the legislature to inter- 
 fere and amend the common law as to the right of selling 
 and buying poisons. While the seller and buyer is each 
 intent on what he is doing, and thinks little or notliing 
 of how innocent third parties may become affected by the 
 article bought and sold, certain precautions as to the sale 
 are enforced in order that competent persons may alone 
 sell such articles, and if sold, that the origin of any mischief 
 may be more easily discovered. Hence statutes enforce 
 restrictions of this kind. The ultimate object of these 
 statutes is to prevent danger to life, but as the nature of 
 the restrictions belongs more properly to the business of 
 chemists, druggists, and medical men, they fall properly to 
 be noticed under that division of the law entitled the 
 " Security of Contract." ^ 
 
 Negligence in setting spring-guns and engines. — Another 
 head of negligence which once caused pain and injury to 
 the body, more frequently than it now does, arose from the 
 practice of owners of land using spring-guns and deadly 
 engines as a means of protection against trespassers. This 
 practice took its rise in the selfish and engrossing view, that 
 property must and may be lawfully defended at all hazards 
 to life and limb; and though the owner did not intend 
 to wound or kill any one, but only to cause terror to in- 
 tending trepassers, and so to protect his interest, yet the 
 exclusive attention to this one object, regardless of all 
 consequences to others, is only another illustration of the 
 same kind of negligence as that which has been displayed in 
 the cases already enumerated, though in this instance such 
 
 deviated, and the patient died, they were punished. — Diod. Sic. h. 1 . 
 
 And by the law of Zoroaster, a physician was ordered to connnence 
 practice on the intidcls, and if three patients died successively, he 
 was deemed unfit to practise on the faithful, and was cut in pieces. 
 But if he succeeded thrice, then he was encouraged, and deemed 
 qualified to practise on the faitlil'ul.— Zf«(^/. Av. tit. 1, p. 2. 
 
 1 Arsenic Act, 14 & 15 Vic. c. 12 ; Piiarmacy Acts, 31 & .32 Vic. c. 
 121 ; 32 & 33 Vic. c. 117 ; Sale of Food and Drugs Act, 38 & 39 Vic. 
 c. 63.
 
 284 OF THE SECURITY OF THE PERSON. [en. ii. 
 
 negligence was more likely to be fatal in certain contin- 
 
 gencies. 
 
 The legality of this practice was much discussed half a 
 century ago, and much doubt existed and still exists as to 
 what was the precise limit of a landowner's powers at 
 common law to protect his rights of property against all 
 comers, without incurring the liability of an action or an 
 indictment. Sometimes owners put up a notice on the 
 boundary of their estate notifying that spring-guns were 
 set in the fields and woods, and that trespassers must 
 beware; and sometimes no notice was put up at all. 
 But whether or not notice was given, it was found that 
 trespassers entered the forbidden ground, and were danger- 
 ously wounded and sometimes killed. In one case, in 
 1820, where notice had been put up, stating that these 
 engines were set in the plantation — there being in reality 
 ten spring-guns in a wood of sixty acres — and a trespasser 
 gathering nuts had been wounded, the court held tliat no 
 action was maintainable by reason of his having read and 
 known of the notice, for he had only brought the 
 mischief on himself.^ In another case, in 1828, where no 
 notice was put up, it was held that an action was main- 
 tainable ; and hence when a lad went into his neighbour's 
 garden to recover a favourite peahen that had strayed, and 
 was wounded by a spring-gun set there, the court held that 
 he was entitled to damages, because the owner oujiht to have 
 given notice of such a dangerous engiue being there.^ 
 
 The doctrine of the common law on this subject justified 
 the placing of spring-guns on this ground, that as the 
 owner could not always be watching his fields in person, 
 and so proportion force to force in extruding trespassers, 
 he could only do so effectually in his absence by placing 
 an instrument, which by the joint effect of terror and 
 physical pain or death (the latter confessedly in excess of 
 the requirements), would put a stop to the trespasses. 
 The basis of all this seemed to be, that property, and not 
 human life, must be protected at all hazards. The common 
 law obviously could say nothing to extenuate the flagrant 
 injustice of occasionally taking away the life of innocent 
 persons without cause, and even of trespassers without 
 adequate cause. And as the common law thus seemed to 
 J Ilott V Wilkes, 3 B. & Aid. 304. 2 gird ^ Holbrook, 4 Bing. 628.
 
 en. II.] LEGALITY OF SPRING-GUNS. 285 
 
 extenuate a species of impersonal assassination, at last the 
 legislature, with higher views of the relative importance 
 of life and property, had to intervene to cover over this 
 conspicuous defect.^ 
 
 AVhen the law as to spring-guns was about to be altered 
 in 1825, the Lord Chancellor said that on every occasion 
 that this question had come before courts of law, the judges 
 had been about equally divided. Lord Elleuborough, C. J., 
 opposing the bill to render it illegal to set spring-guns, 
 said the gardens near London principally owed their 
 security to the engines that were set in them, and that 
 gardeners had no other means of protecting them.^ After 
 much discussion a statute passed, which drew a distinction 
 between dwelling-houses on the one hand, and gardens, 
 fields, and woods on the other.^ The law now is, that who- 
 
 1 The Bnrgundians had laws as to this subject, but took more care 
 of the public, for they compelled a man who set spring-bows for 
 killing wild beasts, under pain of answering for all damage, to give 
 public notice that they were set, and to designate the place by cer- 
 tain marks. — Leg. Burg. tit. 46. But the English landowner claimed 
 the excellence and potency of his device to consist in this, that the 
 exact site of the engine was purposely concealed, and so that tres- 
 passers might be deterred from setting foot in any part of the 
 territory. 
 
 The legislature, for similar reasons, has compelled owners of 
 abandoned mines to fence the shafts. — See ante, y>. 265, 
 
 An able legislator, discussing this subject in Parhament, said in 
 1825, " It was not expedient that those persons, in whom the 
 possession of the soil was vested by conventional laws, should render 
 the earth, which was given to mankind in general as an abiding place, 
 unfit for that main purpose. He must not deal with the portion of 
 land which fell to his lot, so as to render it an infernal region, within 
 which he might usurp the power of inflicting death on all comers. 
 . . . What would be the condition of the country if every hollow 
 contained a man-trap and every bush a spring-gun ? The earth 
 would become a hell, and nuinkind would be divided into devils and 
 victims. A legislature was bound thus to look at the general con- 
 sequences of any practice submitted to its review." — Per C. Tenny- 
 son, M.P., 13 Pari. Deb. (2nd) 1264. 
 
 « 12 Pari. Deb. (2nd) 1020 ; 17 Id. 267. 
 
 3 An ingenious rural divine in those days, taking advantage of the 
 popular teiTor, put up a notice on his garden wall that a poli/jMois- 
 boio was set there. This caused the wondering rustics to stare, to 
 pause, meditate, and feel alarmed at the infallible powers of this 
 unknown engine ; and it is said they all ende<l by carefully abstaining 
 from trespassing in that garden, — 13 Pari. Deb. (2nd) 1258.
 
 286 OF THE SECURITY OF THE PERSON. [ce. ii. 
 
 soever shall set or place, or cause to be set or placed, any 
 spring-gun, man-trap, or other engine calculated t(j destroy 
 human life or inflict grievous bodily harm, with the intent 
 that the same, or whereby the same may destroy or inflict 
 grievous bodily harm, upon a trespasser or other person 
 coming in contact therewith, shall be guilty of a misde- 
 meanour, and liable to penal servitude for five years, or 
 imprisonment for two years with or without hard labour. 
 To wilfully allow such traps, &c., to remain on his lands 
 is the same as to put them there in the first instance. 
 But there is nothing illegal in such gins or traps as are 
 usually set to destroy vermin. And it is not unlawful 
 even to set spring-guns, &c., from sunset to sunrise for the 
 protection of a dwelling-house.^ 
 
 Conclusion of account of bodily injuries from negligence. — 
 We have now noticed all the leading heads of negligence 
 whereby injury, pain, and death are caused to the body, 
 not intentionally, but in circumstances under which the 
 law nevertheless declares it culpable in parties not to take 
 more precaution against interfering with the safety of 
 others. Too exclusive and engrossing pursuit of one's own 
 business and selfish interests is the cause of such injuries, 
 and they are properly corrected by the law. A suitable 
 compensation is and ought to be imposed for such acts of 
 inattention and thoughtlessness as regards the interests of 
 others. We have next to consider another class of injuries, 
 produced, not indeed without intention, but with intention, 
 yet without any set malice and wickedness of purpose, 
 iaamely, such assaults as are caused mostly by heat of 
 blood, and which, through irritating at the moment, are 
 soon forgotten. 
 
 1 24 & 25 Vic. c. 100, § 31 ; 27 & 28 Vic. c. 47.
 
 CHAPTER III. 
 
 PROTECTION OF THE BODY- AGAINST INJURIES INTENTIONAL, 
 
 BUT NOT MALICIOUS. 
 
 Wilful or intentional injuries classified. — Having stated 
 the provisions which the law has made against the threat 
 and well-founded apprehension of wrong to the body, and 
 against such actual injuries as are caused by neghgence or 
 the thoughtlessness of others, we now come to consider 
 what the law does for the protection of the body against 
 actual, wilful, and intended wrong. In the first case the 
 law seeks to prevent mischief; in the other cases to punish 
 in some way the party who has already committed it. The 
 one remedy looks to the future, the other remedies redress 
 the past. It is true that the difference between the two 
 kinds of remedy is very sHght, for no kind of punishment 
 or of preventive means that can be named or devised, can 
 wholly prevent pain or injury from being caused by one 
 human being to another. The mind is too subtle and 
 mysterious in its movements to be controlled, except by 
 adding fresh motives against acting in such a manner as 
 to occasion damage to a fellow creature, in other words, 
 by increasing the punishment that will be exacted if the 
 thing prohibited should be done. Motives of this kind, 
 being the only weapons which the law can devise for 
 controlling the acts of man and directintj the movements of 
 a free mind, the preventive machinery already described 
 of swearing to the peace is only another name ibr doubling 
 the punishment if the offence should be committed. For 
 if the party should, notwithstanding all the formalities 
 and deliberate warnings attending his finding sureties for 
 keeping the peace, actually break the peace, all that will 
 then happen is, that besides the ordinary punishment
 
 288 OF THE SECURITY OF THE PERSON. [ch. hi. 
 
 assigned to the act or crime, he and his sureties must pay 
 a sum of money to the crown or be imprisoned for not 
 doing so. And a marked distinction may be made in 
 classifying actual personal injuries which are wilful or 
 intended. Some are the fruit of hasty passion or fits 
 of temper, and though often attended with serious pain, 
 yet in the great majority of instances they are trifling 
 and soon forgotten ; while others are characterised by a 
 studied, malignant, and revengeful spirit, that stops short 
 at nothing less than death, or something near it. While 
 murder and malicious wounding are of this studied and 
 deliberate kind, those of the lighter kind are treated 
 separately under the head of assault, which, though some- 
 times accompanied by a malicious and deliberate intention, 
 are yet more frequently caused by temporar}^ heat and 
 irritation. Our present subject, therefore, will be assaults 
 only. 
 
 Assault and battery. — The smallest of the injuries which 
 are done to the body intentionally, and which the law 
 furnishes the means of punishing, are classed under the 
 general name of assault and battery. These injuries 
 include almost every kind of pain or suffering inten- 
 tionally caused to the body, and also every kind of threat 
 of immediate injury, which, though applied to the mind 
 rather than the body, is nevertheless oftentimes more 
 intensely painful, and causes a more serious interruption 
 of business. And where insolence accompanies the act 
 or threat, though the actual bodily suffering may be none 
 at all, or of the slightest degree, yet the accompanying 
 circumstances magnify its importance, and constitute it a 
 good ground of action, which may often sound in heavy 
 damages. 
 
 An assault consists in an attempt to touch or strike 
 another's person against his will, or in using an imminent 
 threat to do so forthwith. Thus to strd<:e at one, but not 
 hit him, is said to be an assault, but no battery;^ and so is the 
 throwing of water upon one's body.'^ An assault is resolv- 
 able into four elements : — (I) the intention of the assailer ; 
 (2) the attempt to touch the person, or the threat to do so 
 forthwith ; (3) the non-consent of the assaulted ; and (4) 
 the want of lawful excuse. A battery is a term more 
 
 1 Com. Dig. Battery, C. ^ pursell v Home, 8 A. & E. 604,
 
 CH. HI.] INGREDIENTS OF ASSAULT. 289 
 
 limited ia meaning and denotes a later stage of the assault, 
 when an actual blow has been given, direct or proximate, 
 or a touch accompanied with insolence or anger. But in 
 popular and even in legal language, assault and battery are 
 used as almost synonj^mous terms, and the offence is 
 usually the fruit of hasty temper.^ 
 
 Intention as an ingredient of an assault. — The inten- 
 tion is a leading legal element in every assault and 
 battery, for it is obvious that a stroke may be given, and 
 even pain inflicted, without the knowledge or consent of 
 the person from whom it proceeded ; and hence, because the 
 hostile motive is wanting, there may be no real ground of 
 action. Thus it is, if one were to touch a person to call 
 attention to something affecting his duty or interest ; ^ by 
 ^\■ay of joke or friendship ; ^ or in the exercise of a legal 
 right, such as elbowing one's way through a crowd with as 
 little force as possible.* In such cases the offensive inten- 
 tion is wanting, and so there is nothing blamable in the eye 
 of the law, at least if moderation be observed in the act 
 which is done. There are many acts of rudeness, the result 
 of habitual thoughtlessness or selfish indifference to the 
 feelings of others, which run close to this department of 
 legal redress, but are too slight and insignificant for the 
 cognisance of the law. The courts of law are wholly in- 
 competent to inculcate or enforce good manners or punish 
 incivility ; and the experience of every one suggests how 
 wide a field of annoyance to others is thereby left un- 
 guarded. There must be a limit drawn somewhere to 
 divide petty provocations from those substantial annoy- 
 ances, which usually operate on sensible minds as a 
 hindrance to the business of life. 
 
 As the intention to commit the act is thus a necessary 
 ingredient of an assault, it also follows as a necessary 
 consequence, that if the act imputed was nothing but 
 what is popularly known as an accident, not involving 
 
 ' It is said that the Aleutians, when a quarrel occurs, do not coine 
 to blows, but take their revenge out by lixing an apt nickname on 
 the wrong-doer, to which the aggiieved often adds a recital of the 
 shortcomings of the wrongdoer's parents. — Dall's Alaska, 392. 
 
 2 Coward v Baddeley, 4 H. & N. 481 ; Wiffin v Kincaid, 2 B. & P. 
 472. 3 Per L. Hardwicke, Williams v Jones, Hardr. 301. * Cole 
 V Turner, 6 Mod. 149. 
 
 VOL. I. U
 
 290 OF THE SECURITY OF THE PERSON. [ch. hi. 
 
 blame or negligence, this negatives the unlawful intention : 
 as, where, in course of a common employment, one man, 
 throwing skins to another, hits him in the eye ; ^ or a horse 
 is frightened by a clap of thunder, runs away, and knocks 
 down a passenger in the street.^ It is also no assault where 
 in course of a game one hits another. But if cudgel- 
 playing take the form of a deliberate fight, and is not mere 
 play, then, being unlawful in itself, a hostile intent is 
 not rebutted by proof of an accident, as will be seen when 
 one of the combatants accidentally strikes a tliird person. 
 And it may be said, that, though it is often difficult to 
 distinguish an assault from a mere accidental collision, the 
 assault is nevertheless so far a primd facie presumption, 
 that he, who seeks to excuse or justify what is ex facie 
 an assault, is bound to set up that as a special defence. 
 
 TJie means used to assault. — -Whether the assault and 
 battery be committed by a direct stroke, or by some less 
 immediate means, is wholly immaterial ; and the actual 
 pain or suffering caused is of little consequence as regards 
 the right to redress. If one were to upset another's chair 
 or carriage, and so cause a fall : ^ or strike the horse and 
 so throw its rider:"* or throw water over one:^ or spit in 
 one's face : ^ or without leave cut another's hair or knock 
 off his hat :^ or when tossing a squib into the market-place, 
 one man catches it and sends it on to another, who is 
 wounded:^ or when a drunken man is pushed against 
 another :^ or when unlawfully aiming a blow at one person, 
 another is struck :^*' or, as Holt said, the least touch of the 
 person in an angry manner :^^ in all such cases an assault 
 and battery is committed in the eye of the law. 
 
 Though nothing is deemed to be a battery, unless a blow 
 be actually struck, or is the immediate consequence of the 
 act of another, it is not to be supposed that the law takes 
 no cognisance of the injury, merely because it is one of 
 the more remote consequences of another's act. All that is 
 
 » R. V Gill, 1 Str. 190. « Gibbons v Pepper, 4 Mod. 405 ; 1 
 
 L. Raym. 38 ; 2 Salk. G37. 3 Hoi)per v Reeve, 7 Taunt. 698. 
 '^ Dodweli V Buri'ord, 1 Mod. 24 ; Sid. 4)53. ^ Simpson v Morris, 
 
 4 Taunt. 821. 6 r. ^ CotesworUi, G Mod. 172. 7 Forde v 
 
 Skinner, 4 C. & P. 239. « g^ott v Sheplienl, 2 W. PI. 892. 
 
 9 Short V Lovejoy, Bull. N. P. IG. '» James v Cauipbell, 5 C. & P. 
 372. »> Cole V Turner, 6 Mod. 149.
 
 CH. III.] THREAT TO STEIKE ONE. 291 
 
 meant is, that the injury, whatever it be, will not come 
 within the head of assault and battery or iDe dealt with by 
 the appropriate proceeding of an action of trespass, or the 
 other punishments applicable thereto. Nevertheless, such 
 injury may be punishable in another action which is often 
 called an action on the case, as having been caused by the 
 negligent act or conduct of others. Indeed, the general rule 
 is, that whenever a trespass has been committed, nothing 
 but inevitable necessity, or at least the absence of any 
 blame, will excuse the person whose act or conduct 
 materially contributed to produce such an effect.^ If, for 
 example, from a sudden fright a horse were to run away 
 with its rider and run over a man, it would be no battery ; 
 but if this consequence was occasioned by a third person 
 whipping the horse, then such third person would be liable 
 for the battery.2 And an assault has even been deemed to 
 be committed by withholding food from, or exposing to incle- 
 ment weather, a child whom one is under a duty to feed 
 and clothe ;^ though it is so, only when some hurt or injury 
 results.* And hanging a child up in a bag is deemed by 
 the law an assault on such child.^ 
 
 The assmilt or blow must he actual or imminent. — And 
 where no actual blow is struck either immediate or 
 mediate, but an assault or threat is used, if such threat is 
 imminent and made by one who is in a position to carry it 
 out forthwith, and it is so understood by the person 
 assaulted or threatened, this will be deemed in law an 
 assault ; as where the hand is lifted to strike, or a horse is 
 urged to ride one down :^ where a gun or stick is aimed or 
 sword drawn within range -J or the sleeves are tucked up 
 to fight.s While, on the other hand, if the threat is 
 merely to be carried out at some future time, and is not 
 attended with any immediate inconvenience, the action 
 will not lie.^ 
 
 ' Dickenson v Watson, T. Jones, 205 ; Uuilervvood v Hewson, Str. 
 696 ; 1 L. Rayni. 467. 2 Gibbons v Pepper, 4 Mod. 405 ; 
 
 2 Salk. 637 ; 1 L. Kaym. .88. 3 r_ „ Ridley, 2 Camp. 650. 
 
 * R. V Rensliaw, 2 Cox, C. C. 285 & R. v March, 1 C. & K. 496. 
 6 Martin v Sliopper, 3 C. & P. 373 ; Stephens v Myers 4 C. & V. 
 350. 7 R. „ St. Georc^e, 9 C. & P. 493 ; Osborn v Veitclu 
 
 1 F. & F. 317. » Read v Coker. 13 C. B. 860. "■* Cobbett v Qx&\, 
 4 Exch. 744. 
 
 U 2
 
 292 OF THE SECURITY OF THE PERSON. [ch. hi. 
 
 It lias been said more than once, that presenting a 
 gun at another is not an assault, if the gun is not, in point 
 of fact, loaded.^ But this can only be just and sensible, 
 where it is quite clear that the person aimed at knew that 
 it was not loaded ; for if he did not, the terror would be 
 just as great under the uncertainty as under the reality. 
 And, at all events, presenting a loaded gun at half-cock is 
 an assault, for though it could not go ofl' in that form, a 
 momentary touch of the finger could alter the case.^ So 
 no words, however irritating, if not accompanied with a 
 threat of the kind mentioned, will, in the eye of the law, 
 amount to an assault ; though in former times, when men's 
 passions were less under control, this was considered an 
 excusable cause for a blow, as being done in self-defence. 
 And yet if, in the heat of passion, a blow shall be given 
 for sharp words, and an action be brought, the jury may 
 give nominal damages only, and the judge may, so far as 
 he can, deprive the plaintiff of his costs.^ 
 
 An assault implies that it is against consent of assaulted. — 
 A material legal ingredient also in an assault and battery 
 is, that the threat or blow is against the consent of the 
 person, for the maxim volenti non fit injuria will then 
 apply. Hence in a game or sport, such as wrestling or 
 boxing, or playing at cudgels, this licence is either express 
 or presumed, and the mutual exchange of blows excludes 
 this necessary ingredient of the cause of action. Thus, if 
 two persons agree to play at cricket together, and the one 
 strikes the other with the ball in the course of the game, 
 inasmuch as the consent to take the risk of usual incidents 
 was implied, it would be a contradiction in terms to sue 
 for this as an assault.* If, indeed, two parties fight to- 
 gether, though in a certain sense each may be said to 
 license the other to beat him, yet the law will not excuse 
 the blow, if either chooses to resort for redress to the 
 court, seeing that all such conduct necessarily implies a 
 breach of the peace, and is thus unlawful if the other 
 chooses so to treat it.^ And though there can be no assault 
 
 1 Blake v Bernard, 9 C. & P. 626 ; R. v James. 1 0. & K. 530 ; 
 R V Baker, 1 C. & K. 254. '^ Osborii v Veitcli, 1 F. & F. 317. 
 
 •* Tlie Romans distinguislied bcatiiie: without \)a.m, jmlsatio, irova 
 beating with pain, verberatio, and proliibited both, — if. 47, 10, 5. 
 
 " Christopherson v Bere, 11 Q. B. 477. ■' Bull. N. P. 16.
 
 <Ti. HI.] ■ EXCUSABLE ASSAULTS. 293 
 
 unless it be committed against the consent of the party- 
 assaulted, yet if the consent or pretended consent is ob- 
 tained wholly or partially by a trick or misrepresentation, 
 the act done will then not the less be an assault : as where 
 a schoolmaster takes liberties with a female scholar ;^ where 
 a doctor 'pretends that it is necessary to strip, or other- 
 wise treat a female patient,^ and thereby under the false 
 impression a kind of simulated consent is procured. And 
 so jealous is the law of such a defence being set up, that 
 it is incumbent on the defendant to set out in the clearest 
 manner, that the act of assault was either unavoidable, or 
 with consent, and so involved no blame, otherwise the 
 presumption will be against liim.^ 
 
 This doctrine, that consent of the party assaulted will 
 negative the legal character of an assault, has been carried 
 to what at first sight appears an extravagant extent in the 
 case of children. Thus it has been held no assault at 
 common law for a man to take indecent liberties with a 
 child between ten and twelve, or even under ten, provided 
 the child consented.* It might have been expected that 
 there was nothing to prevent a court holding that a child's 
 consent, in such cases, should be immaterial, if such child 
 was incapable of knowing the nature of the act to which 
 she is assumed by the law to consent, and thus it might 
 have been treated as a question of fact in each particular 
 instance for the court, or jury, or justices deciding it. 
 Owing, however, to the singular and exaggerated import- 
 ance often assigned to precedents, it may be now im- 
 practicable to treat this last view as correct in law. 
 
 So77ie assaults are excusable or justifiahlc. — Another 
 characteristic of an assault is, that there should be no 
 legal excuse for it, and this introduces a large class of 
 exceptions or legal excuses, which are recognised as 
 adequate reasons, why the law should overlook the ap- 
 parent wrong. And at the outset one maxim is adopted, 
 namely, that a blow for a word shall not be allowed : in 
 
 ' R V Nichol, Ru8s. & R. 130. 2 r. ^ Rosiiiski, 1 Moody, C. C. 
 
 19 ; R. V Case, Den. C. C. 580 » Weaver v Ward, Hob. 134 ; Dic- 
 kenson V Watson, T. Jones, 205. 
 
 4 R. V Meredith, 8 C. & P. 589 ; R. v Banks. lb. 574 ; R. v Martin, 
 9 C. & P. 213 ; 2 Moo. C. C. 123 ; R. v Cockburn, 3 Cox, C. C. 543 ; 
 R. V Johnson, 1 L. & C. 632.
 
 294 OF THK SECURITY OF THE PERSON. ("ch. nr. 
 
 other words, however irritating another's language may be, 
 the party addressed is not justified in dealing a blow in 
 answer to it, for in a settled state of society, where actions 
 and remedies of all kinds abound, each should be able to 
 control his temper, and not use his hands to express, or to 
 vindicate, or to give emphasis to his opinions or feelings. 
 Hobart attempted to explain why it was, that the law did 
 not allow any man to strike in private revenge of ill words, 
 and his reason was, that there was "no proportion between 
 words and blows, but he that is stricken may strike again." ^ 
 The same learned judge however admitted it to be true, 
 that there is a judicial combat allowed before the constable, 
 if a man be called "traitor." Perhaps a more lucid reason 
 may be suggested, namely, that a blow is only the revenge 
 of barbarians for the want of a ready answer by the 
 tongue, and that the strength or readiness of a man's hand 
 lias nothing to do with his quarrel being just. 
 
 Self-defence against blows. — While words however may 
 not be answered by blows, it is otherwise when blows are 
 first given, for then other blows may be returned.^ To 
 ward off blows and overcome them with greater blows is 
 one of the laws of nature, which no advance of civilisation 
 is ever likely to render superfluous or wrong. Hence I may 
 lawfully return blow for blow, or may strike in order to 
 ward off an impending blow from my own person, when- 
 ever there is no other means of protection. Some dis- 
 crimination is however necessary in order to keep one's 
 acts of self-defence within their proper sphere, so that 
 what is meant to be a shield may not be used too liberally 
 as a weapon of offence. If I have been already assaulted, 
 and further assaults are likely to follow, I may lawfully 
 strike my assailant, and even though no further assaults 
 were reasonably to be apprehended, I will not be too nicely 
 judged if in the heat of the moment I have in a spirit of 
 retaliation dealt a iinishing blow. Yet even in the latter 
 case some proportion is to be observed between the 
 strength of the assault and the apprehended danger which 
 it was intended to ward oil'; for if the assault is trifling, 
 tlieu a battery or maiming of undue severity inflicted in 
 order to guard against such assault cannot be justified, 
 
 ' Lord Darcey v Marldiam, Hob, 120. ^ wise v Hodnell, 1 1 A, 
 
 & E. 816.
 
 en. m.] ASSAULT IN DEFENCE OF CHILD. 295 
 
 whichever of the parties may have made the first assault.^ 
 As Holt, C. J., said, liittiiig a man a little blow with a little 
 stick on the shoulder is not a reason for him to draw a 
 sword and cut and hew the other.^ The blows of self- 
 defence are thus only excusable so long as the transaction 
 is one and continuous ; for after my blood has cooled, and 
 an interval has elapsed, I ought no longer to think of 
 physical force as my remedy, seeing that the law will 
 sufficiently redress the grievance by its own appropriate 
 forms.^ 
 
 Assault in defence of child or wife. — Not only is it 
 excusable for one to assault another in self-defence, but 
 the same excuse is extended in deference to the feelings 
 of human nature, where the assault is made in defence of 
 one's wife or child. In this respect the law makes allow- 
 ance for the indignation natural to one whose social 
 affections may be outraged by violence or insult; and 
 if in protecting these near relatives it is reasonably neces- 
 sary to commit an assault and battery, the circumstances 
 will afford sufficient excuse. It is difficult indeed to draw 
 the line between one near relation and another, and a 
 parent, brother, sister, or husband may equally well claim 
 the same degree of zeal, more especially if ill-health or 
 special circumstances render these relatives incapable of 
 self-defence.'* 
 
 1 Dauny v Lucy, Sid. 246 ; Keb. 884. 2 Cockroft v Smith, 1 L. 
 Raym. 177 ; 2 Sti"lk. 642. 
 
 3 Cockroit v Smith, 11 Mod. 43 ; R. i; Driscoll, 1 Car.& M. 214.— 
 It is often a question of difliculty to decide in case of two persons 
 assaulting each otlier, how to separate the blamable from the 
 innocent party. The Gentoo Code obviously thought this was 
 impracticable, for it fined both parties, hut the one who first struck 
 was made to pay the larger fine. — Genloo Code, c. 3, § 3. But 
 Putfendorf said of private ' assaults as of public wars, that the 
 aggressor is not he, who gives the first blow, but he who first 
 resolves and prepares to give oiie.-^Puff. Man tD Citiz., b. 1, o. 6, 
 § 17. 
 
 Self-defence is, moreover, distinguishable from taking the initia- 
 tive, or what is known as taking the law into one's own hands — that 
 being an oifence according to all laws, and one which lies at the root 
 of law itself. Even the Kaffirs punish a man for taking the law 
 into his own hands, or for anything like retaliation. — Maclean's 
 Kaffirs, 111. 
 
 * Leward v Baseley, 1 L. Raym. 62 ; 3 Salk. 46.
 
 296 OF THE SECURITY OF THE PERSON. [en. iii. 
 
 If master and servant are justified in strilcing in defence 
 of each other. — Not only is a parent entitled to strike in 
 defence of a wife or child, but a similar rule has been 
 extended to servants, for it has been often said a servant 
 ■will be admitted to justify an assault and battery in 
 defence of his master about to be struck in his presence,^ 
 and in like manner a master in defence of his servant.- 
 This last point however has been doubted, on the ground 
 that though the servant is justified in defending the 
 master, the converse is not true.^ The relation of master 
 and servant was once more close and confidential than it 
 now is, and the habits of society insensibly react on the 
 law, and may change it by degrees. Much will depend 
 even in this branch of the law on the nature of the service 
 and the duties arising out of it. And certainly where the 
 relation is no closer than that of master and servant, 
 the courts are reluctant to admit this justification, seeing 
 that the party may be deemed usually able to protect 
 himself in circumstances which at most give rise to a civil 
 action. Hence a servant has been deemed to be not 
 justified in striking in defence of his master's son,* or to 
 strike one who was about to beat his master's horse, for 
 this was said to be a premature and somewhat remote 
 precaution.^ And for the same reason it is not deemed 
 any justification that the assault was committed by a 
 tenant in defence of his landlord,*^ or by one neighbour or 
 friend in defence of another.'^ 
 
 All justifiable assaults must he to protect, not revenge. — 
 In all cases, however, except in self-defence, it is necessary 
 to show, that the assault was made not by way of revenge 
 or retaliation, nor even in hot blood, nor on the spur of the 
 moment, but solely in order to prevent an injury to some 
 person, whom it was a natural duty to protect ; and 
 therefore, if the ground of provocation be past, an assault 
 which in the heat of the moment would have been 
 justifiable, will then cease to be so.^ 
 
 Assault in chastising children. — A child however young 
 
 ' Barfoot v Reynolds, 2 Str. 953. 2 Tickell v Read, Lofft, 21.5. 
 3 Seaman w Cuppledick, Owen, 150. ^ 1 Hawk. o. GO, § 24. 
 
 ■'- Shingleton v Smith, 2 Lutw. 1481, 1483. « i Hawk. c. GO, '§ 24. 
 
 7 Leward v Baseley, 1 L. Raym. 62 ; 1 Salk. 407 ; 8 Salk. 46. « Bar- 
 foot V Reynokls, 2 Str. 953.
 
 CH. III.] PARENTS CORRECTING CHILDREN. 297 
 
 is entitled to the same protection as adults against every 
 kind of assault and wrong, but owing to the peculiar 
 relation between parent and cliild, the law allows, that 
 there may be good reasons why corporal punishment should 
 be inflicted on children as part of a wholesome discipline. 
 Every parent, accordingly, is entrusted by the law with the 
 power of moderate correction and chastisement, if the child 
 be of tender years and is under his care. This power does 
 not, however, strictly speaking, belong to the parent merely 
 as such, since it is given for like reasons to every person, 
 whether a relative or not, under whose care and custody 
 for the time being a child of tender years is placed. It is 
 because the parent is the natural guardian of the child 
 when living with him that this power arises, and because 
 the law takes notice that occasional correction is a neces- 
 sary, or at least usual, part of education.^ It is solely on 
 the ground, that education is necessary and proper for a 
 child, that such power of correction is entrusted to the 
 guardian ; it is not for any intrinsic merit in the mere 
 flogging. But it is essential in the exercise of the power, 
 that the correction administered be in all cases moderate, 
 and that any implement used be also of moderate power, 
 and be used with moderate force. The law cannot, indeed, 
 enter into the minute inquiry, how far this or that 
 occasion for chastisement of a child is wise or judicious. 
 The parent must be entrusted with a reasonable discretion 
 to that extent. But whenever in the opinion of intelligent 
 bystanders the moderation is exceeded, and paternal power 
 is used as a cloak for mere unbridled passion and ferocity, 
 then it is time for third parties to interfere, and if neces- 
 sary to prosecute the offender. Whether a parent can 
 justify correcting a child for saucy and contumacious 
 conduct is only another form of the question, as to whether 
 that education which a parent may be presumed to give 
 includes all modes of decorous bringing up and good 
 conduct.^ 
 
 ' The Creek Indians, it is said, never beat their children, bnt with 
 a needle or pin let blood on the legs or thighs. — 5 IScJioolcr. 273. The 
 Spartans allowed a parent to chastise any other person's children as 
 well as his own. — Montesq. b. 5, c. 7. 
 
 ^ " A parent has not only the power, but it is his duty, to correct 
 his child ; but instead of inflicting five or six strokes with a few
 
 298 OF THE SECURITY OF THE PERSON. [ch. hi. 
 
 lu the case of excessive severity being used towards 
 children, the appropriate remedy is not a civil action, but 
 an indictment or a summary proceeding before justices : 
 and tlie whole circumstances — the alleged occasion — the 
 M^eight of the blow — the nature of the instrument used — 
 the marks of violence discovered — and all other particulars 
 must be taken into account by the justices or jury whose 
 duty it will be to inquire into the case. 
 
 Schoolmasters correcting children. — The same moderate 
 power of correcting cliildren when under instruction, which 
 a parent or guardian possesses is impliedly delegated to 
 the schoolmaster who is engaged to perform the office of 
 instructor, and he can set up a like justification for 
 moderately chastising his pupil. And the reasons which 
 govern the conduct of a parent, as well as the bounds set 
 to the exercise of his power, apply equally to the case of 
 the schoolmaster, who is equally liable for any excess in the 
 punishment. It seems to be universally assumed that 
 corporal punishment is an indispensable ingredient in the 
 education of young children, though some skilful teachers 
 know how to dispense with it. Yet an excess of chas- 
 tisement in any case will be unjustifiable, and the law 
 will exact a strict account of every blow from a school- 
 master, or from a parent, or any other person, under whose 
 care a child is for the time placed.^ 
 
 Assault in correcting apprentices. — The case of an 
 apprentice differs considerably from that of children of 
 tender years, for though adults as well as children may 
 enter into such a contract, it is usual for apprentices to 
 begin their term of service while they are still childreii. 
 Apprenticeship is usually a double contract, including 
 
 birch twi'f^s on that child, if he inflict five or six hundred, though 
 the instrument be a legal instrument, and cannot be quarrelled with, 
 yet the extremeness of the quantity may denote an intent to do 
 mischief, not bridled by that which ought to bridle hiuiian actions. 
 If again the instrinnent itself is improper, suppose that instead of 
 five or six strokes with a rod, you give five or six blows with a 
 cudgel, it may be said that was an instrument likely to kill the 
 child, and would be an excess with respect to the instrument itself." 
 —Per Macflonuhl C. II, R. v Wall, 28 St. Tr. 145. 
 
 1 In 1823 Sir R. Peel told the House of Conmions that flogging in 
 public schools should be abolished by Act of Parliament, but this 
 has not yet been done.— 8 Pari. Deb. "(2d) 1439.
 
 PH. m.] MASTERS STRIKING SERVANTS. 299 
 
 service on the one hand, and teaching on the other hand. 
 The apprentice is a servant as well as a pupil. Tlie 
 master is also a teacher as well as a master. And it is 
 solely in virtue of the contract to teach that the master 
 acquires any power whatever to correct or chastise an 
 apprentice. The duty to serve is in no way qualified by 
 any incidental power of the master to punish; for this 
 would be only allowing a man to take the law into his 
 own hands. Hence, whenever the ayjprentice is an adult or 
 has arrived at an age of capacity to know right and wrong, 
 an age to be punished for crime, the master ceases to have 
 any authority to correct him by corporal pains. The master 
 must then, according to his contract, still do his best to 
 teach ; yet if the apprentice is beyond correction and deaf 
 to remonstrance, the master cannot call to his aid the 
 parental power of chastisement, but can only rescind or 
 abandon the contract, if the temper and disposition have 
 arrived at a pitch of settled insubordination. 
 
 The law, it is true, has been somewhat loosely explained 
 on this subject, and there are dicta, however vague, to the 
 effect, that it is a defence for such assault or chastise- 
 ment, that the apprentice was saucy.^ And correction 
 of apprentices has been said to be justifiable, without 
 defining the age or object.^ But on such a point as 
 this, affecting the liberty of the subject, precedents and 
 dicta ought to have little weight, seeing that the manners 
 of a ruder age must always unconsciously influence the 
 judgment. 
 
 Masters assaulting servants. — Though the general rule 
 is, that a blow for a word is not to be allowed, yet it 
 is singular that, as between master and servant, the 
 notion has long been countenanced, that a master is at 
 liberty to give emphasis to his views, feelings, and com- 
 mands by supplementing them with a blow, or even with 
 many. Such a notion, no doubt, has come down from 
 before the dark ages, when slaves could be kicked and 
 beaten at the master's or owner's discretion ; and tbough 
 personal service is now a free contract, yet the ancient 
 taint is not wholly obliterated. Cato the censor, after a 
 dinner-party, used to correct with leathern thongs those 
 slaves who had been inattentive, or had suffered any 
 ' Peun V Ward, 2 C. M. & R. 338. « 3 Salk. 46.
 
 300 OF THE SECURITY OF THE PERSON. [ch. iir. 
 
 thing to spoil.^ And our own law for many centuries back 
 has been too indulgent in its practice towards masters 
 in this respect. It seems that in the time of Henry 
 VIII. it was thought legitimate, and a matter of course, 
 for lords and masters to strike their servants with 
 their hands or fists and any small staff or stick, for 
 correction and punishment ; and this was expressly saved 
 out of the category of murders and offences done within 
 the king's household.^ And in the time of James I., 
 when stabbing was made felony, it was thought neces- 
 sary to save from the statute those who, in chastising 
 children and servants, chanced to commit manslaughter.-^ 
 Hale says the law alloM'ed a master to use moderate 
 correction. Holt, C. J., says more than once, that a 
 master has a right to strike his servant by way of cor- 
 rection.* And Lord Kaymond, C. J., said the master might 
 correct a servant in a reasonable manner for a fault.^ All 
 that Blackstone says is, that a master may correct his ap- 
 prentice for negligence or misbehaviour.^ But notwithstand- 
 ing all these dicta and assumptions, which are the reflection 
 of more coarse and barbarous habits, nothing seems more 
 clear than that the contract of service in the present day 
 gives no such implied authority to one party to enforce 
 his views by breaking the peace ; and whether this view 
 arises out of a higher tone of morality, or a growing 
 consciousness of the complete repertory of remedies which 
 the law has elaborated for every kind of wrong, few 
 judges would repeat or act on the sayings and practices 
 on this point of the most admired oracles of the law, even 
 a century old. It is true, that when provocation is listened 
 to as an excuse, the provocation of masters must have 
 some weight ; but this at best can be an uncertain resource, 
 seeing that every class of mankind have about equal 
 provocations to tempt them to acts of violence. 
 
 Husbands assaulting wives. — The same views and habits, 
 out of Avhich grew the dictum, that masters may at 
 discretion beat their servants, at least for what they 
 consider faults, has led to the popular belief that a 
 husband could beat his wife, or, as it was called, correct 
 her ; and the same tainted origin of slavery and slavish 
 
 1 Plut. Cato Gens. ^ 33 jjen. VIII. c. 12, § 6. M Jas. I. 
 c. 8. "17 St. Tr. G7. " 17 St. Tr. 54. 6 \ b1. Com. 428.
 
 rn. III.] HUSBANDS STRIKING WIVES. 301 
 
 notions may account for such doctrine. This arbitrary power 
 of husbands began to be doubted in the time of Charles 11.^ 
 The difference between modern and ancient practice on 
 the subject consists chiefly in this, that courts and juries 
 will now attribute more weight to even trifling assaults 
 or ill-usage, than would be allowed to these in former times. 
 A wife has for centuries enjoyed the remedy of binding 
 a husband over to keep the peace, and she has a remedy 
 for cruelty in the Divorce Court ; and with these remedies 
 it may be taken now as a fixed rule, that the contract of 
 marriage in no sense implies any licence or authority to 
 the husband to beat or correct his wife, though such 
 olfences may be more difficult to prove, and thus may 
 appear to be to some extent without redress. 
 
 Churchwarden assaulting persons misbehaving in church. 
 — There is one case in which an assault is said to be 
 justitied by reason of an official duty. Thus a church- 
 warden, who is deemed by law bound to see that 
 decorum shall be observed in church, may remove the 
 hat of a person in the church, if the latter fails to do so 
 on request ; - and he may whip boys misbehaving in the 
 churchyard for a like reason. But when shorn of these 
 high prerogatives, a churchwarden seems to be only as 
 other men in respect to the present subject. It has 
 indeed been said, that a person who is struck in a church- 
 yard, cannot justify striking again in his own defence.^ 
 The ground was said to be, that it was a sanctified place,* 
 and it was like striking one in court or within view of the 
 courts. But this last proposition has been narrowed to 
 striking in the court while sitting, for then the party may 
 be punished by the court then and there. And there is 
 nothing now to support the doctrine, that self-defence in 
 a churchyard is less allowable than elsewhere.^ It is 
 however to be borne in mind, that to assault, arrest for 
 civil process, or obstruct a clergyman in performing his 
 duties in a church or during burial in a churchyard is of 
 itself a misdemeanour.^ And three centuries ago one, who 
 struck another in a churchyard, was liable to be excom- 
 
 1 1 Sid. 113 ; 3 Keb. 433. "- Hawe v Planner, 1 Wnis. Saund. 10 ; 
 Burton v Henson, 10 M. & W. 105 ; Worth y Terrino-ton, 13 M. & 
 W. 781. 3 1 Hawk. P. C. 139. ; Cro. Jas. 3G7, 373 ; 1 Lev. 106. 
 
 4 -2 Ed. 6. 5 2 Wynne, Eun. 256. 6 24 & 25 Vic. c. 100, § 36.
 
 302 OF THE SECURITY OF THE PERSON. [ch. in. 
 
 municated ; and if he drew a weapon he was to have one 
 ear cut off, or his cheek branded with the letter F.^ It is 
 also an offence to molest the clergyman during divine 
 service, and punishable by fine of five pounds.^ But if 
 divine service is over, and he is merely collecting the 
 offertory, this being no part of the service, any one ob- 
 structing does not offend against this particular statute, 
 whatever other redress there may be.^ 
 
 Assault to stop persons fighting. — Where persons are 
 engaged in an affray, which in strictness of law is defined 
 as a fight in a public place between two or more persons, 
 to the terror of the queen's subjects, anyone of the public 
 who is a bystander may justifiably assault one of the 
 parties in order to cause a cessation of the fight, provided 
 always in this, as in other cases, that lie use no greater 
 force than is necessary to procure the only result which 
 should ever be the object of his interference, namely, the 
 preventing any repetition of the affray.* And to prevent 
 a third party being attached, or a dog being incited to bite, 
 is also a good cause for such interference.^ Yet, lest such 
 interference should be misconstrued by the parties en- 
 gaged, such bystander should be careful first to intimate 
 his object to the party whom he seeks to restrain.^ But 
 mere quarrelsome words or abusive language will not 
 amount to an affray so as to justify the use of force. The 
 sound and fury of words must be left to spend themselves 
 in the air, and do not justify the arrest of the person who 
 volleys them forth. 
 
 Assault in defence of possession of property. — Not only 
 does the law justify an assault, if it is committed without 
 excess in self-defence, or in defence of a wife, child, or 
 relative, and in situations already noticed, but the same 
 justification extends to assaults committed in defence of 
 one's peaceable possession of his lands or goods. The 
 exclusive possession of one's property is of the highest 
 regard in the eye of the law, and to deprive the owner of 
 
 ' 5 &. 6 Ed. VI. c. 4, § 3. Tliis was repealed in 1829 ; 9 Geo. IV. 
 c. 31 ; 23 & 24 Vic. c. 32, § 5. '^ 23 & 24 Vic. c. 32, § 2. 
 
 3 Cope V 15arl)er, 41 L. J., M. C. 137. * Noden v Jolinson, 16 Q. 
 
 B. 218 ; Timothy v Simpson, G C. & P. 500. ^ G,.ifH„ „ Parsons, 
 
 Selw. N. P. 27 ; 1 Hawk. c. 60, § 23. 6 i East. P. C. 306 ; Fost, 
 
 Cr. L. 310.
 
 CH. III.] ASSAULT IN DEFENCE OF PROPERTY. 303 
 
 this possession by force is a wrong of so odious and urgent 
 a character, that the law sympathises with a man. who feels 
 excited and wlio resorts to force to prevent such possession 
 being interfered with. If there is not a colour of right or 
 claim on the part of the aggressor, the attempt in case of 
 goods is nothing less than an attempt to steal. But there 
 are many mixed cases, where there may be no such evil 
 disposition as felony presumes, and yet there may be such 
 a flagrant contempt of the ordinary remedies which the law 
 supplies, that the aggressor is viewed as only invoking the 
 punishment he deserves by provoking his neighbour over 
 much. If there is a dispute between them the law is open 
 to the complainant ; but no code of law could consistently 
 tolerate an appeal to violence as the solution of such 
 dispute except in rare cases, for the peculiar triumph of 
 law is to supersede all violence by leaving such solution to 
 the calm neutrality of a judge. In all cases, therefore, 
 where a person is in peaceable possession of land or goods, 
 either as owner or representing the owner, and a stranger, 
 without the warrant of any legal process, seeks to dispossess 
 him, force may be used to prevent the aggressor carrying 
 his point.^ The assault in such a case is viewed as a 
 necessary consequence of the unjustifiable interference 
 with the possessory right, and so is in itself justifiable.^ 
 And though at one time it was thought that a man was 
 justified in assaulting another only to retain or defend 
 possession of his goods, but could not break the peace in 
 order to regain possession, he is now held justified also in 
 using force to regain possession of tliem.^ It is the same 
 as regards the possession of land, for where a breach of the 
 peace is committed by a freeholder, who, in order to get 
 possession of his land, assaults a person wrongly holding 
 possession of it against his will, though the freeholder may 
 be responsible to the public in the shape of an indictment 
 for a forcible entry, he is not liable to the other party. 
 He may be justified in entering on his land, even though 
 in so doing a breach of the peace is committed.'^ If the 
 owner M-ere compelled by law always to seek redress by 
 
 I Jackson v Cjurtenay, 8 E. & B. 8. 2 Roberta v Taylor, 1 C. 
 B. 117. '^ Blades v' Hio-gs, 10 C. B., N. S. 713. •* Harvey v 
 Bridges, 14 M. & W. 442 ; 1 Exch. 261 ; Lows v Telford, 45 L. J., 
 Exch. 613.
 
 304 OF THE SECURITY OF THE PERSON. [ch. hi. 
 
 action for a violation of his right of property, the remedy 
 would be often worse than the mischief, and would 
 aggravate the injury instead of redressing it.^ 
 
 In defence of property moderatio7i of assault is essential. — 
 When one is said to act in defence of his land or goods, 
 this includes the protecting of them against wilful injury 
 or destruction as well as against mere acts of trespass. 
 But, as has been said, one ought not to begin with striking. 
 The law allows one, either in defence of his person or 
 possessions, first to lay his hand on the adversary, and then 
 to say, that, if any further mischief ensue, it will be in 
 consequence of the adversary's own act; and then the 
 battery will follow from the interference.^ And yet a 
 previous request to desist is not necessary when force has 
 been already used.^ And it must never be forgotten, that, in 
 this as in other cases of resorting to force against a third 
 party, moderation must be observed, and no more force 
 used or pain inflicted than is reasonably necessary to 
 defend the property and maintain the status quo} 
 
 Assault in ejecting stranger from house or land. — It often 
 happens, that disputes, not connected in any way with the 
 title to lands, arise between the person in possession of 
 a house or land, and a stranger or friend, who, with or 
 without permission, has entered upon the premises. In 
 judging of the mutual rights of the parties to remain, the 
 first point to be ascertained is, who is for the time being 
 the occupier of the premises, for what is commonly called 
 the occupation of a house or land is only another name for 
 the legal right to exclusively possess the premises for a 
 definite term or during the will and pleasure of the true 
 owner. In such a state of things, part of the absolute 
 ownership, which consists in the exclusive right of posses- 
 sion, has become vested in the tenant or occupier, and, so 
 long as such occupation lasts, the occupier is as much the 
 entire master of the premises, and can dictate who shall 
 come or go upon the premises, as if he were the absolute 
 owner. The right of occupation therefore implies the 
 
 1 Blades V Hi^-i^-s, 10 C. B., N. S. 721. ' Per Lawrence J., 
 
 Weaver v. Bush, 8 T. R. 78. ^ i^\^ Polkinghorn v Wright, 
 
 8 Q. B. 206 ; Green v Godchird, 2 Salk. 641. " Cockroft v 
 
 Smith, 11 Mod 43; 2 Salk. 641; Tullay v Reed, 1 C. & P. 6 ; 
 Gregory v Hill, 8 T. R. 299.
 
 . II. 111.] ASSAULTS AS TO DISPUTED POSSESSION. 305 
 
 absolute right to exclude third parties and forbid them to 
 remain on the promises ; and whoever is upon the premises 
 remains solely by the will and pleasure of the occupier, who 
 can, however, at any moment revoke such pleasure with or 
 v/ithout reasons given. As between himself and all otliers, 
 liis will and pleasure is the sole rule by which their right to 
 be on the premises is governed. Though they are peace- 
 ably there, that is to say, having entered by his express 
 or implied permission, still if at any moment he chooses 
 to revoke that permission and he requests them to leave, 
 they are bound to go, and are in the eye of the law tres- 
 passers from that moment. And it makes no difference 
 whether such third parties may have had some contract 
 with the occupier, which included a permission to them to 
 remain for the purposes of such contract ; the utmost that 
 can result from this is, that on breach of the contract the 
 occupier will be required to pay damages. But the 
 occupier's inherent and absolute right to order any person 
 to leave his premises remains unaffected, and however 
 harshly or wrongfully he may act, the law will not 
 inquire into his motives. The parties must leave on his 
 request, and if after such request they refuse peaceably to 
 depart, he may use force just sufficient and no more to 
 expel them from the premises. But before force is resorted 
 to, care must be taken in all cases first to request the party 
 to leave peaceably.^ Thus a shopkeeper, though in a 
 certain sense always inviting the public to enter and 
 purchase, may, nevertheless, at any moment call on his 
 customer to leave.^ 
 
 Assault in disputes as to possession of real property. — 
 And it is equally a rule of law that in all disputes where 
 one is in possession and another seeks possession though 
 not employing any force, the former cannot lawfully begin 
 to use force to repel, until he has first requested the latter to 
 desist in his attempt. If after such request the latter still 
 insists, he may be lawfully assaulted with less or greater 
 force, proportioned to the need of getting rid of him. 
 And the cardinal ride in such a case is, to use no more 
 force than is necessary to overcome the resistance. If one 
 uses more force than is absolutely necessary, he renders 
 
 1 Tulley V Pvced, 1 C. & P. 6. '^ Timothy v Simpson, G C. & 
 
 P. 500. 
 
 VOL. I. X
 
 306 OF THE SECURITY OF THE PERSON. [CH. iii. 
 
 himself responsible for all the consequences of the excess- 
 Thus, if a man comes on my land, I cannot lay hands on 
 him to remove him until I have deshed him to go off! If 
 he will not depart on request, I cannot proceed imme- 
 diately to beat him ; but must endeavour to push him off". 
 If he is too powerful for me, I cannot use a dangerous 
 weapon, but must first call in other assistance.^ 
 
 It is to be borne in mind that the legality of the con- 
 duct of persons peaceably defending property does not 
 always turn on the strict legal rights subsisting in that 
 property. If a person is in peaceable possession of pro- 
 perty which he believes to be his own, or at least claims as 
 such, or claims at least in possession, he is not to be dis- 
 possessed by force even by him who may turn out to be the 
 rightful owner and entitled to possession. The ownership is 
 not to be confounded with the possession, for a tenant may 
 he rightfully entitled to possession as against the owner 
 of the reversion himself, who in such a case will not be 
 entitled to possession till the present occupier's term has 
 come to an end. Therefore the true criterion of whether 
 one who holds possession of property can use force to 
 defend such possession is not solely that in strictness of 
 law he is entitled to such possession, but the main test is 
 as to his being for the time in peaceable possession. If 
 he has no right to continue in such possession, the owner 
 must resort to the legal remedy appropriate to his case, 
 and can rarely use force to recover such possession even of 
 what is his own ; at least if he does so, he may be opposed 
 with still greater force, and must take the consequences. 
 Yet there are many cases, wdiere the possessor having not 
 a colour of title to maintain his possession, and the real 
 owner having given him no colour of acquiescence, may 
 be ejected with force, and even though a breach of the 
 peace is committed thereby. It was indeed once thought 
 that if one is in actual possession of a house or pre- 
 mises, and another is rightfully entitled to the immediate 
 possession, the latter cannot justifiably use force to recover 
 the possession unless he can do so without a breach of the 
 peace. It is true, that, if he use force and commit a breach 
 of the peace, he is always liable for the assault.- And it^ 
 
 1 Per Best, J., Ilott v Wilkes, 3 B. & Aid. 317. ''- 5 Rich. 2, c. 7 
 Newton v Harland, 1 M. & Gr. 660 ; 1 Sc. N. R. 474.
 
 CH. III.] TURNING VISITOR OUT OF HOUSE. 307 
 
 was always admitted that if a squatter or mere trespasser, 
 who had no title to the possession, has, whether by accident 
 or by the contrivance of the rightful possessor, left the pre- 
 mises vacant, the latter may then lawfully enter with or 
 without force, and when the squatter returns may rightfully v 
 defend his newly-regained possession against such squatter, 
 and use the necessary force and no more for that purpose 
 and to that extent.^ And the general rule is, that, if a 
 freeholder entitled to possession finds one in possession 
 who has no right as against him, he may use force to 
 obtam the possession ; and though he may commit an 
 offence for which he may be punished, yet he is entitled to 
 keep the possession so won, and the ejected person cannot 
 maintain any civil remedy.^ There may be an offence 
 punishable criminally, but that will not affect the right- 
 fulness of the acquired possession. 
 
 Turninrj out trcspasHcr with assistance of constable. — It 
 frequently happens, that the occupier of a house, in desir- 
 ing to turn out an unwilling guest, visitor, or trespasser, 
 calls to his assistance a constable. It is true that the 
 constable in such a case is often requested, and if so it is 
 liis duty to attend as a spectator, and on the ground that 
 a breach of the peace is likely to be committed. He may 
 on request assist in expelling the intruder; but in so 
 acting the constable has no other or greater power than 
 any other person acting at the occupier's request. He may 
 be a convenient witness in the event of future proceedings, 
 but unless some breach of the peace occurs in his presence 
 on the part of the intruder, the constable has no right to 
 take such intruder into custody. By refusing to quit the 
 premises, such intruder may render himself liable to a 
 civil action, but he commits no crime by merely remaining 
 lono-er and giving more trouble and annoyance than he 
 ought to do. If, without being first struck, he strike the 
 occupier, he may then be apprehended by the constable 
 and taken before a justice and charged with an assault. 
 But until such wrong is committed, aU that the constable 
 can justifiably do is merely to assist the occupier in push- 
 ing out the intruder, using no more force than is necessary ; 
 and if the intruder's conduct is such as reasonably appears 
 
 1 Browne v Dawson, 12 A. & E. 629. ^ Harvey v Bridges, 14 
 
 M & W 442 • 1 Exch. 2G1., Jones v Chapman 19 L. J. Exoli. 456. 
 
 X 2
 
 308 OF THE SECURITY OF THE PERSON. [gh. hi. 
 
 likely to lead to an immediate breach of the peace, the 
 constable may then, and not before, apprehend such in- 
 truder for such conduct, and charge him with an assault, 
 or the intruder may be bound over to keep the peace.^ 
 - Assaults in p^ize- fighting . — Though the essence of an 
 assault is its being committed against the will of the 
 assaulted, yet this element is wanting in the case of a 
 mutual fight between two persons with weapons or with- 
 out. In "such cases, if one sue the other for the assault, 
 leave and licence cannot be pleaded in defence, because 
 the law views such a practice as illegal, and any licence 
 fouAded on it is void.- It is true the damages in such a 
 case would be small if the remedy be by action, and the 
 punishment small if the remedy be by indictment. Prize- 
 fights however are frequently brought about, and lead 
 sometimes to charges of murder or manslaughter, and on 
 that account will be noticed under those heads of law. 
 Even in their mildest form, these fights involve all the 
 spectators in the common guilt of committing an assault 
 or breach of the peace. And on that account, if one of 
 the combatants strike a bystander in the heat of the 
 quarrel, he will be liable to an action, though the damages 
 recovered might be small on account of the surrounding 
 circumstances.^ 
 
 Assault in executing legal ijrocess. — As a general rule, 
 assaults committed by officers of the law, such as con- 
 stables, bailifts of the sheriff, and others duly authorised, 
 stand on a different footing from assaults committed by 
 ordinary subjects. As between individuals an assault is 
 primd facie a wrong, and requires to be justified on one or 
 other of the grounds already stated. But as between a 
 constable, or bailiff, and another party, as it is the duty 
 of the former in executing the process of the law to 
 arrest individuals, and an arrest cannot usually be made 
 without an assault, thus, what is with difficulty justi- 
 
 1 Wheeler v Whiting, 9 C. & P. 2G5. ^ Boulter v Clark, Bull. 
 N. P. IG, 17. » James v Cauipbell, 5 C. & P. 372. 
 
 To discourage and render more difficult the associating of 
 persons for prize-fights, the legislature has imposed a fine of 
 two hundred to five hundred pounds on anj' railway company that 
 knowingly provides special trains to facilitate such meetings. — 31 
 &32 vice. 119, § 21.
 
 en. 111.] ASSAULT BY BAILIFF. 309 
 
 fiable in the one case may be easily justifiable in the 
 other. It is not intended here to state all the circum- 
 stances and occasions on which a constable or bailiff may 
 arrest an individual, as much of this part of the law 
 belongs more properly to the law of arrest ; but it often 
 happens that excessive violence is used in the course of 
 an arrest, provoked as it sometimes is by the conduct of 
 the party arrested. In such cases the chief question is, 
 whether such violence was excessive and unnecessary, 
 having regard to the conduct of the party arrested, and 
 to the assumed fact, that the warrant or authority of the 
 constable or bailiff was regular and lawful.^ It may some- 
 times be necessary to touch a person even to serve him 
 with process.^ And in cases of arrest it is to be remem- 
 bered, that a constable has power to arrest only under 
 certain circumstances, and if those circumstances do not 
 exist, and he has no reasonable cause for what he did, he 
 commits an assault for which an action of trespass is 
 the remedy .3 
 
 It is also a fundamental rule, that in all cases, other 
 than arrest for felony or treason, or such indictable 
 offences as require no warrant to authorise the arrest, 
 the constable must, at the time of the arrest, have the 
 warrant in his personal possession ready to be produced 
 and shown to the party arrested. The law is tender of 
 the liberty of all men, and no one is bound, in the cases 
 last mentioned, to surrender his person to the custody of 
 another, except when some lawful warrant is shown, which 
 puts all doubt as to the legality of the cause of arrest at 
 an end. Thus, an arrest for disobeying an order of justices 
 or other like offence may be autliorised by statute when a 
 warrant of a justice of the peace is obtained : but in such 
 cases it is not enough to justify the actual arrest, that a 
 warrant has been actually obtained. It is further necessary 
 that it be forthcoming for the inspection and satisfaction 
 of him whose liberty is to be infringed, and who may want 
 to know why his liberty is infringed. And if the warrant 
 is not produced on request, the party assaulted may resist 
 
 ' R. V Milton, M. & ^I. 107 ; 3 C. & P. ?>\ ; luiason v Cope, 5 C. * 
 P. 193 ; Levy v Edwards, 1 C. & P. 40. ^ Harrison v Hod^-soii, 
 10 B. & C. 445. 3 stocken v Carter, 4 C. & P. 477 ; R. v Birnie, 
 1 M. & Rob. 160.
 
 310 OF THE SECURITY OF THE PERSON. [ch. in. 
 
 to any extremity and at all hazards in defence of his 
 freedom, and that wholly irrespective of whether there 
 may or may not be good cause for a warrant.^ 
 
 Remedies for assault generally. — An assault is a violation 
 of legal right, which has this remarkable feature, that the 
 assaulted person has usually three alternative remedies. 
 The motive of an assault is of somewhat ambiguous 
 character. It is seldom purely malicious, and is more 
 frequently the result of sudden passion or anger, and thus 
 has little of that settled malice which is the usual in- 
 gredient of crime. It is also usually followed rather with 
 insult than pain, and so a criminal punishment of a severe 
 kind is not called for. Yet some satisfaction is due to 
 wounded feelings, or to that moderate pain which usually 
 results. There being much variety in the attendant cir- 
 cumstances, the law assigns damages by way of action as 
 one remedy, or in the more serious cases, an indictment. 
 But both these remedies are tedious, and hence there is a 
 third remedy of a summary and expeditious character, which 
 is administered through the intervention of justices of 
 the peace, who have power either to fine or to imprison 
 the offender.'^ 
 
 Punishment of assault hj justices of the peace. — When it 
 is deemed suitable to resort for a summaiy remedy to 
 justices of the peace, they may hear a complaint by or on 
 behalf of the party aggrieved, for any unlawful assault or 
 battery ; and if the charge is proved, they may commit the 
 defendant to the common gaol or house of correction, with 
 or without hard labour, for a term not exceeding two 
 months. Or the justices may merely impose a fine not 
 
 1 Galliard v Laxton, 2 B. & S. 363 ; Codcl v Cabe, 45 L. J., 
 M.C. 101. 
 
 '^ Tliis notion of treating an assault as partly a civil and partly 
 a criminal offence is bj' no means modern. Solon was said to have 
 made a ^Yea.t improvement in the law of Athens when he allowed 
 third parties to prosecute for assaults or personal injuries, for 
 tliereby it was said he gave all an interest in enforcing the law.— 
 Pint. Sol. And this was only another way of saying that he made 
 assault punisliable criminally as well as civilly. And a gliunnering 
 of this state of the law soon arises ev^en among barbarous tribes, for 
 among the Kallirs when an assault is connnitted, the chief of the 
 tribe prosecutes and gets his line, the impressive maxim being, 
 that no man can eat his own blood. — Macleans Kaffirs, 35.
 
 CH. in.] JUSTICES PUNISHING FOR ASSAULTS. 311 
 
 exceeding, togetlier with costs, five pounds ; and failing 
 ])ayment of such fine,- then the defendant may be im- 
 prisoned with or without liard labour for two months, 
 unless the fine and costs be sooner paid.^ 
 
 It is to ])e observed, that, though an assault may be 
 treated as an indictable offence, and so may be prosecuted 
 by any person, yet in cases before justices of the peace, 
 the coni})laint must be made " by or on behalf of the party 
 iiggrieved," otherwise the justices cannot entertain it. 
 Where children or idiots are assaulted, it is reasonable to 
 allow the complaint to be made by a parent or guardian, 
 having the care of the person assaulted ; but in other in- 
 stances, if a mere stranger interfere, and the assault is not 
 an aggravated one, as is noticed in the next paragraph, 
 the proceeding should be by indictment. 
 
 Justices pun isliing for assaults on v:oiiicn and children. — 
 Where the assault is an aggravated assault, by which is 
 meant an assault or battery made upon any male child 
 under fourteen, or upon any female of whatever age, and 
 whether the complaint is made on behalf of the party 
 aggrieved or otherwise, the justices may in like manner 
 liear and decide the case, if in their opinion the assault 
 (;annot be adequately punished as a common assault. And 
 if the aggravated assault is proved, the justices may im- 
 [)rison the offender for six months with or without hard 
 labour, or may impose a fine of twenty pounds, and failing- 
 payment, a like imprisonment. And over and above this 
 ])uni5hment, they may order the ofiender to enter into 
 recognizances to keep the peace, and be of good behaviour 
 for six months after the expiration of the sentence.^ 
 
 Though a common assault can only be punished by 
 justices, when the party aggrieved or some one on his 
 hehalt comphdns, it is thus otherwise when the assault is 
 committed on a cliild under fourteen, or on a female. In 
 the latter case any person whatever may prefer the com- 
 plaint, and tliereby procure the punishment, though, as 
 wdl be seen, the punishment may not be final, unless the 
 ])arty assaulted is the complainant. 
 
 Justices are to give certificate in assault cases. — The 
 justices may not only decide cases of assault, but their 
 decision iv declared to be final and conclusive in several 
 
 ' 24 & 25 Vic. c. lUO, § 42. - 24 & 25 Vic. c. 100, § 43.
 
 312 OF THE SECURITY OF THE PERSON. [cu. iii. 
 
 instances. The legislature has enacted that if the justices, on 
 the hearing of the case of assault and battery on the merits, 
 whether it is a common or an aggravated assault, and when 
 the complaint has been made by or on behalf of the party 
 aggrieved, shall deem the offence not to be proved, or to 
 have been justified, or so trifling as not to merit any 
 punishment, and shall accordingly dismiss the complaint, 
 they shall forthwith make out a certificate, stating the fact 
 of such dismissal, and shall deliver the same to the defen- 
 dant.i The effect of the certificate in further litigation 
 between the parties will be immediately seen, but it is 
 important first to state how and when the certificate may 
 be obtained. 
 
 This certificate the justices have no discretion to refuse 
 in the event of the dismissal on either of the grounds 
 specified. They are indeed not bound to grant it imme- 
 diately, that is, on the same day as they dismiss the 
 complaint ; but may do so within a reasonable time, which 
 has been interpreted by the courts, according to circum- 
 stances, to include several days.^ 
 
 It is also to be observed, that such a certificate is onh' 
 to be given after a hearing on the merits, and if the com- 
 plaint was preferred by or on behalf of the party aggrieved. 
 Accordingly if the prosecutor has, after laying the infor- 
 mation or after the serving of the summons, changed his 
 mind and retired, or does not appear before the justices to 
 give any evidence, they can only dismiss the summons, 
 but cannot grant this certificate, for in those circumstances 
 there can have been no hearing on the merits. And this 
 enactment tends to prevent collusive proceedings taken 
 for the purpose of screening the offender from other punish- 
 ment. And if the complaint has not been made by the 
 party aggrieved, but by a stranger, then the justices are 
 neither authorised nor justified in granting the certificate. 
 
 Effect of justices decision in assault cases. — The effect of 
 the certificate already described being granted by the 
 justices is, that the defendant shall be released from all 
 further or other proceedings, civil or criminal, for the same 
 
 » 24 & 25 Vic. c. 100, § 44. 2 HaTicock v Somes, 1 E. & E. 7% ; 
 Coster V Hetlicrington, 1 E. & E. 802. And the certilicate should 
 etate on the face of it, on which of tlie grounds the couiijlaint was 
 dismissed. — Skuse v Davis, 10 A. & E. G36.
 
 cu. III.] JUSTICES DECIDING ASSAULT CASES. 313 
 
 cause.^ Hence, as a general rule, neither an indictment 
 nor an action can be resorted to after the adjudication of 
 justices. And not only is a defendant discharged by a 
 "certificate of justices from all other punishment, but the 
 same effect is produced if he has been convicted and has 
 paid the whole amount adjudged to be paid, or has 
 suffered the imprisonment, with or without hard labour, 
 which was awarded.'^ 
 
 Though the justices' decision on the merits has thus 
 been declared to be a bar to other proceedings for the same 
 cause or assault, there is some difficulty in interpreting and 
 applying this general rule, owing to the vagueness of the 
 words. There is a general maxim of the law, that no 
 person should be twice vexed for the same cause, and this 
 may be the basis of the above enactment. In one case, 
 after a dismissal by justices of a summons for assault, 
 the assaulted party, finding his injury to be more serious 
 than was at first apprehended, indicted the assailant, but 
 the indictment was held to be barred by the justices' 
 certificate.^ In another case the assailant had been con- 
 victed by justices of the assault and had suffered imprison- 
 ment and hard labour, and afterwards, the assaulted party 
 having died in consequence of the assault, the assailant 
 was indicted and tried for manslaughter ; and the court 
 held the previous conviction for assault was no bar to the 
 indictment, because the second was substantially a different 
 accusation, and not one for the same cause.* 
 
 Justices may in some cases refuse to decide on ussanlts. — 
 But though it is incumbent on justices of the peace, when 
 their juiisdiction is invoked in cases of assault, to adju- 
 dicate upon the complaint, there are some circumstances 
 in which they have a discretion to abstain from doing so, 
 and, instead of themselves deciding, they may remit the 
 case to the more solemn and formal remedy of an indict- 
 
 1 24 & 25 Vic. c. 100, § 45. 2 ibid. 3 jj. v Elrington, 1 B. 
 
 & S. 688 ; R. V Stanton, 5 Cox, C. C. 325. 
 
 4 R. u Morris, L. R., 1 C. C. R. 90. But where a wife was assaulted, 
 andciiarged the assailant, who was tined by justices, and the husband 
 afterwards brought an action for the loss of the wife's society 
 and assistance during the time of suffering from the assault, this 
 action was held barred. — Mubper v Brown, L. R.. 1 C. P. Div. ; 45 
 L. J., C. P. 203.
 
 314 OF THE SECURITY OF THE PERSON. [ch. hi. 
 
 ment. Thus when they find the assault or battery had 
 been accompanied by any attempt to commit felony, or 
 they a,re of opinion that from any other circumstances the 
 same is a fit subject for a prosecution by indictment, they 
 shall abstain from any adjudication and treat it as a case 
 over which they have no jurisdiction.^ The justices more- 
 over will, whether they wish to decide or not, be deprived 
 of the jurisdiction over cases of assault, where any question 
 shall arise as to the title to any lands, tenements, or here- 
 ditaments, or any interest therein, or accruing therefrom, 
 or as to any bankruptcy or insolvency, or any execution 
 under the process of any court of justice.^ The reason of 
 this enactment is, that as justices are not usually trained 
 to the legal profession, and intricate questions of law may 
 be mixed up with the assault and its circumstances, it is 
 better that they should at once decline to adjudicate, and 
 remit the parties to their other remedies. Injustice can 
 rarely be done by this course, because there are always 
 skilled tribunals having a concurrent jurisdiction, and 
 before which the most intricate problems of law can be 
 solved. We have already seen that an assault is justifiable 
 in many cases in defence of one's property or possession, 
 and whether such assault was justifiable or not in any 
 particular case, may depend entirely on questions of real 
 property law, which only the superior courts can satisfac- 
 torily determine. This mode of ousting the justices of 
 their jurisdiction, as it is called, is not peculiar to cases of 
 assault, but equally extends to the adjudications of all 
 inferior courts of summary jurisdiction, whether the 
 statute creating the jurisdiction expressly states this ex- 
 ception or not, provided always it do not expressly give 
 such jurisdiction. Thus in cases of malicious injury 
 to property, in trespass in pursuit of game or fish, the 
 same mode of depriving justices of jurisdiction applies. 
 
 The application of this rule by justices however requires 
 considerable nicety of judgment, for the question whether 
 the defendant bond fide claims exemption from their juris- 
 diction, on the ground that title to lands is involved, is 
 a preliminary question to be decided, and for the purpose 
 of so deciding it scmie lacts may require to be proved, and 
 the circumstances should be such that a legal ground for 
 1 24 & 25 Vic. c. 100, § 46. 2 ibid.
 
 CH. III.] JUSTICES DECIDING ASSAULT CASES. 315 
 
 such a claim may reasonably arise. If the justices make 
 a mistake, and overrule the objection of title, tlieir decision 
 may be reviewed by the Queen's Bench Division on an 
 application for a certiorari. So that they are not the 
 exclusive judges of whether they should or should not 
 exercise their jurisdiction in a particular case where an 
 objection of title is raised. And they cannot get over the 
 difficulty by finding there was an excess of jurisdiction, 
 for if there was a lond fide question of title involved, 
 though an excess of force was used, the whole remedy 
 must be remitted to the High Court of Justice, and not 
 disposed of by an inferior tribunal.^ 
 
 Maximum of 'punishment hy justices in assault cases. — 
 111 all cases where justices of the peace, in a summary 
 manner, convict a person of assault, the punishment is 
 either a fine or imprisonment, according to the discretion 
 of the justices. But the imprisonment cannot in cases of 
 common assault exceed two months, or in cases of aggra- 
 vated assault on children and women, exceed six months. 
 It is true that if a tine be imposed in the first instance, 
 and it be not paid either immediately or within the time 
 named, then the offender may in substitution be imprisoned 
 for six months. And beyond these two kinds of punish- 
 ment the justices may further, in aggTavated assaults, bind 
 over the oh'ender to keep the peace, and be of good be- 
 haviour for six months more after the expiration of the 
 sentence.^ 
 
 Though such is the law as regards common assaults and 
 iiggravated assaults, when punished by justices in a sum- 
 mary way, there are some classes of assaults in which 
 a higher punishment is authorised. Thus, in case one 
 shall beat or use any violence or threat of violence to any 
 person with intent to deter or hinder him from buying, 
 selling, or disposing of corn or potatoes, in a market or 
 public place, or in the way towards market, or with intent 
 to compel a sale or purchase of such grain, then the only 
 punishment a justice can award is not a fine, but imprison- 
 ment, which is not to exceed three months.^ And tlie 
 same punishment is iufiicted on those who unlawfully, and 
 
 1 R. V Pearson, L. R.. 5 Q. B. 237. 2 24 & 25 Vic. c. 100, 
 
 §§ 42, 43. ' 3 24 & 25 Yic. c. lUO, § 3y.
 
 316 OF THE SECURITY OF THE PERSON. [ch. hi. 
 
 with force, hinder or prevent seamen from working at 
 their trade. The urgency of these trades seems to be the 
 reason for singling the assaults out for somewhat more 
 severe punishment.^ 
 
 Justices cannot give compensation for assault. — The justices 
 have no power, in addition to a fine or imprisonment, 
 to order payment of damages to the injured party, though 
 the contrary was the ancient law of Wales, which enabled 
 damages, besides the other punishment, to be awarded, 
 according to the quality and quantity of the offence.^ The 
 justices, however, may award the costs of attendance before 
 them to be paid by either the complainant or the defendant, 
 according to the result of the proceeding. 
 
 Some assaults treated as misdemeanours. — There are 
 other assaults besides the foregoing, which are treated as 
 misdemeanours, and indictable only, being too serious to be 
 disposed of summarily. Thus, to obstruct or prevent by 
 force or threats any clergyman or dissenting minister from 
 celebrating divine service, or officiating in a church or 
 chapel, or in the burial of the dead, or to strike or offer 
 violence to, or to arrest under civil process, any clergyman 
 or dissenting minister while engaged in or about to engage 
 in these sacred duties, or while returning from such duty, 
 is a misdemeanour punishable with two years' imprison- 
 ment, with or without hard labour.^ And to assault, 
 strike, or wound a magistrate, officer, or other person, while 
 preserving a vessel in distress, or stranded, or the ship- 
 wrecked goods, is a misdemeanour punishable with penal 
 servitude or imprisonment.* And an assault with intent 
 to commit a felony is also a misdemeanour, punishable 
 with two years' imprisonment.^ 
 
 Assaults arising out of combinations or strikes of work- 
 men in trade disputes are also treated as misdemeanours and 
 punished witii two years' imprisonment. It was shown in 
 an earlier chapter, when treating of threats and molestations, 
 that an act done merely in furtherance of a trade dispute 
 is not indictable as a conspiracy, unless the act when done 
 
 • 24 & 25 Vic. c. 100, § 40. 2 stat. Wall., 12 Ed. I. c. 11. 
 3 24 & 25 Vic. 100, § 3(;. 
 
 * 24 & 25 Vic. c. 100, § 37. Penal servitude from five to seven 
 vears, or imprisonment lor two years with or without hard labour. 
 
 " '" 24:& 25 Vic. c. 100. § 38.
 
 r.u. III.] SOME ASSAULTS MISDEMEANOURS. 317 
 
 by one person would be a crime.^ But that enactment 
 does not materially conflict with the present enactment, 
 which punishes thus severely an unlawful assault in pur- 
 suance of an unlawful conspiracy to raise wages or an 
 unlawful combination. So assaults on constables or peace 
 officers in the execution of their duty are also deemed 
 misdemeanours.^ A later Act, of 1870, however, declares 
 an assault on a constable to be an offence which may be 
 tried summarily by two justices, who may on conviction 
 imprison the offender for six months, or fine the offender 
 twenty pounds, and in default of payment imprison him 
 six months.^ There was also a penalty recoverable before 
 justices of live pounds for assaulting or resisting a borough 
 constable ;* of twenty pounds for assaulting pr resisting a 
 special constable,^ or a county constable.*" But these 
 prior statutes seem to be partly repealed by the latest 
 statute above mentioned.'^ And this is only one of many 
 examples of confusion pervading the statute book. 
 
 Assaults on parents treated as common assaults. — And 
 here may be noticed a peculiarity of ancient and eastern 
 codes which punished with unusual severity an assaidt 
 upon a parent. Though assaults upon clergymen, upon 
 magistrates at a shipwreck, and some others are treated 
 severely, yet an assault on a parent is not singled out for 
 excessive punishment, except so far as the justices have 
 some discretion in varying punishment in all cases.^ 
 
 ' 38 & 39 Vie. c. 86, § 3. See ante, p. 223. 
 
 2 Whosoever shall assault, resist, or wilfully obstruct a peace- 
 officer in the due execution of his duty, or any person acting in aid 
 of such officer, or whoever shall assault any person with intent to 
 resist or prevent the lawful apprehension or detainer of himself or 
 of any other person for any offence, shall be guilty of a mis- 
 demeanour, punishable with two years' imprisonment. — 24«S:25 Vic. 
 c. 96, § 38. 
 
 3 34 & 35 Vic. c. 112, § 12. -« 5 & 6 Wil. IV. c. 76, § 81. ^1& 
 2 Wil. IV. c. 41, § 11. 6 2 & 3 Vic. c. 93, § 8. 7 34 & 35 vic. 
 c. 112, § 12. 
 
 8 Tlie Mosaic code directed the punishment of death against 
 those who assaulted or cursed their parents. — Exod. xxi. 15, 17. 
 And Plato himself directed that they should be put to death for an 
 attempt to kill parents, though unsuccessful, and should be banished 
 for life for striking them ; and any freeman who should eat or drink 
 with, or even touch such offenders, should be forbidden to enter the 
 temple or the market-place until he should be purified. — Plato, De Leg.
 
 318 OF THE SECUEITY OF THE PEKSON. Tch. hi. 
 
 Assault in a court of justice. — There is still one kind of 
 assault that requires special notice. An assault in a 
 superior court of justice was once punishable with cutting 
 off the right hand, and forfeiture of goods and lands for 
 life.^ In 1631 a prisoner, at Salisbury assizes, having 
 thrown a brickbat at the judge after receiving his sentence, 
 he was indicted and tried at once, and after seeing his right 
 hand cut off and fixed to a gibbet, was himself lianged'^in 
 the presence of the court, all being done uno fiatu. And 
 in a case in 1799, being an information for riot and strikino- 
 in the assize court. Lord Kenyon said he had some doubts 
 whether the court must not order amputation ; but fortu- 
 nately, before finally deciding this point the Attorney- 
 General cautiously entered a 7iolle j^rosequi} And now this 
 old law may be said to be impliedly repealed by tlie later 
 enactments applicable to all assaults, and which do not 
 except those committed in courts of justice. 
 
 Criminal remedy for assault hy information. — The other 
 criminal remedies in case of an actual assault are infor- 
 mation and indictment. The latter is the ordinary and 
 universal remedy; the former is exceptional, and is in 
 practice confined to cases which involve more or less 
 directly some public duty or some scandal connected with 
 the administration of justice, or some flagrant outrage on 
 the liberty of the subject. An information is moreover 
 not a remedy open to an individual except by leave of the 
 Queen's Bench Division, which exercises a discretion in 
 allowing it, and usually refuses it, except in signal and 
 flagrant cases. Thus a criminal information for an assault 
 has been deemed a fit remedy, where a magistrate com- 
 mitted the assault.3 And a criminal information was held 
 a right course to take, even though the prosecutor had at 
 first given the defendant into custody, but failed to press 
 
 b. ix. See also^o.?^ Ch. vii. And in China tlie striking of a parent 
 or grandparent was a capital offence, and even to use abusive lan- 
 guage to him was crimm&X.- -Staimton's Code, 346, 357. In such 
 cases also Benthani reconnnended that, in addition to the ordinary 
 punislinicnt, the delinquent sliould undergo a penance more or less 
 public u])on the stool of repentance, with his hands tied above his 
 head, and an inscription stating his offence. — 1 Benth Worka, 165 
 
 1 1 Hawk, 3. 21, § 3; 4 Bl. Com. 125 ; 1 East. P. C. c. 8, « 3 
 •^ R. V Thanet, 27 St. Tr. 845. 3 Anon. 2 Barnard. 138.
 
 CH. III.] INDICTMENT FOR ASSAULT. 319 
 
 the charge, owing to his, on second thoughts, preferring 
 the higher remedy.^ Such also are cases where a malicious 
 impressment had been made by a captain of a sloop of 
 war ; '^ and for a challenge to tight ; ^ though if the prose- 
 cutor be the first to send the challenge, he will be left to 
 his indictment.* When this criminal information is granted 
 by leave of the court, the party is tried in the same manner 
 as if it were an indictment, an information being nothing 
 else but an indictment commenced by an officer of court 
 and not by a private prosecutor. The preliminary steps 
 onlv are different, but the conclusion of the proceeding is 
 substantially the same. 
 
 Indictment for assault. — An indictment is the remedy 
 for an assault in those cases, upon vvhich justices in their 
 discretion, and for the reasons already stated, decline to 
 adjudicate ; and while an action at law is also competent, 
 yet an indictment is reserved as the appropriate remedy 
 for the more serious cases. It is true that no precise line 
 of demarcation can be drawn between assaults actionable 
 and assaults indictable ; and it lies with the injured party to 
 treat the injury in either way ; or, to speak more correctly, 
 he alone may decide either to sue or to indict, while others 
 besides himself may initiate a prosecution by indictment, 
 if so inclined. 
 
 When an indictment has been resorted to as a remedy 
 for assault and a verdict of guilty of a common assault is 
 given, the court may punish the offender with one year's 
 imprisonment with or without hard labour ; and if 
 the assault has occasioned bodily harm, the court may 
 award as punishment penal servitude for five years, or 
 imprisonment for two years, with or without hard labour.^ 
 Or the court may impose a fine on the offender, either in 
 addition to, or in substitution for, the above imprisonment, 
 and in addition require him to enter into recognizances 
 with or without sureties to keep the peace and be of good 
 behaviour.*^ And whenever a count for a misdemeanour 
 contains a charge of assault with circumstances of aggrava- 
 
 1 R V Gwilt, 11 A. & E. 587 ; 8 Dowl. 476 ; E. v Holloway, 8 Mod. 
 283. '^ R. V Webb, 1 W. Bl. 19. '^ R. v Dove, Comb. 477 ; 
 
 R V Chappel, 1 Burr. 402 ; R. v Younghusband. 4 N. & M. 850. 
 4 R V Hankey, 1 Burr. 316 ; R. v Larrieu, 7 A. & E. 277. * 24 & 
 25 Vic. c. 100, § 47. « 24 & 25 Vic. c. 100, § 71.
 
 320 OF THE SECURITY OF THE PERSON. [cii. in. 
 
 tion, the jury may find the defendant guilty of a common 
 assault, and acquit him of the circumstances of aggrava- 
 tion.^ It is also competent for the court when a person is 
 convicted on an indictment for assault to order him in 
 addition to any other punishment to pay to the prosecutor 
 his actual and necessary costs and expenses of the prose- 
 cution, and such moderate allowance for the loss of time 
 as shall be reasonable ; and for non-payment of this sum 
 an imprisonment of three months may be awarded in 
 addition to any other imprisonment. ^ 
 
 Remedy for assault hy action of damages. — As already 
 stated, a person assaulted has a civil as well as a criminal 
 remedy, and they are deemed by the law to be identical in 
 their origin. Yet where a person has brought an action 
 for an assault, and also preferred an indictment for the 
 same, the court in which the action is brought will not 
 compel him to elect as to his remedy, for they are treated 
 as quite distinct.^ But the court has refused after convic- 
 tion on an indictment for an assault to sentence a party 
 while an action was pending.* When an action for assault 
 is brought, it proceeds in the same way as other actions, 
 but there is a peculiarity attending the amount of damages 
 recoverable, which marks it out from most other actions. 
 The issue involved in most instances being entirely one 
 of damages, the jury who decide necessarily enjoy a greater 
 freedom in fixing the amount of such damages — as they 
 have also for a like reason in an action for false imprison- 
 ment. There being no definite lines within wliich the j uiy 
 can be confined, they surrender themselves usually to the 
 impression of the moment, derived from a vivid description 
 of the conduct and relative situation of the two parties 
 before them, and the surrounding circumstances, and hence 
 they are masters of the situation. And it is so difficult at all 
 times to put a money value on an insult or a personal attack, 
 that the courts are slow to interfere with the exercise of 
 discretion on the part of a jury. It has accordingly been laid 
 down as a rule that, when a jury assess a sum as damages 
 l)y way of reparation for an assaidt, that amount will not be 
 
 > R. V Oliver, Bell, C. C. 287 ; R. v Yendon, 1 L. & C. 81. 
 
 2 24 & 25 Vic. c. 100, § 74. These costs may be levied by distress 
 and sale of goods, § 75. 
 
 3 Jones r Clay, I B. & P. 191. ■» R. v Mahon, 4 A. & E. 575.
 
 CH. III.] DAMAGES FOR ASSAULT. 321 
 
 interfered with by any court except the damages are grossly 
 excessive, or clearly founded on a mistaken or improper 
 view of the subject-matter.^ What is or is not in this 
 view grossly excessive damages is a question equally vague 
 with the other, yet the court takes upon itself so far to 
 review, or rather supervise, the conduct of a jury as to be 
 able to say what is or is not excessive or extravagant ; and 
 if the court deems it excessive it will often grant a new 
 trial on that account.^ 
 
 Finality of damages as remedy. — It is also a feature of 
 this kind of action, that the reparation or redress sought 
 for must be given by the jury once for all. They must look 
 forward and consider the probable immediate consequences 
 of the injury sustained, and form the best judgment on 
 the matter they can, so as to give complete satisfaction and 
 make an end of the litigation. The plaintiff cannot come 
 a second time claiming damages for the same cause on the 
 ground that consequences and injuries not at first foreseen 
 have subsequently been developed. Thus where a blow 
 was given on the head, and after action brought, and small 
 damages recovered, it turned out that the skull had been 
 fractured, and part of it came away, the plaintiff never- 
 theless was not allowed to bring a second action for this 
 unknown and unexpected sequel.^ And indeed this is 
 only the same rule which is followed in actions for other 
 wrongful acts.* 
 
 "O" 
 
 1 Edgell V Francis, 1 Sc, N. R. 121 ; Huckle v Money, 2 Wils. 206. 
 
 2 As De Grey, C. J., said : " If two ordinary men should quarrel 
 at an ale-house, and one should give the other a fillip upon the nose, 
 and 1000/. should be given for damages, which is ten times more 
 than both the parties are worth, such damages would be evidence 
 that the jury had not acted with the deliberation that the administra- 
 tion of justice requires." — Fabrigas v Mostyn, 20 St. Tr. 176. 
 
 3 Fetter v Beale, 1 L. Raym. 339, 692. *■ Bonomi r Backhouse, 
 1 E. B. E. 657. 
 
 VOL. I.
 
 CHAPTER IV. 
 
 PROTECTION OF THE BODY AGAINST MALICIOUS, WILFUL, 
 AND NEGLIGENT ACTS, WHICH KILL OR WOUND. 
 
 Murder the worst of human crimes. — Murder is the 
 worst of all the crimes which one fellow subject can 
 commit against another in a civilised community, being 
 nothing less than the deliberate destruction of that life 
 which it is one of the chief ends of the law to protect. 
 Coke says that the life of man is ot all things in the world 
 the most precious.^ Life is to most men the best of all the 
 gifts of God, for which they would gladly give the whole 
 world, and though the cultivated intellect can see things 
 greater even than life, yet in the general level of humanity 
 it is the one priceless treasure. The law fixes its standard 
 of excellence, its standard of conduct, and of happiness, 
 not for the select few, but for the whole mass. It learns 
 which is the irreparable wrong not from the lips of 
 martyrs, of heroes and enthusiasts, but from the speech 
 of common men. It is in the protection of human life, 
 therefore, against murder, that all the resources of the law 
 might be expected to be put forth, and all the most con- 
 summate safeguards arrayed which its ripest wisdom can 
 devise. Yet, strange to say, the law may be said here to 
 be all but powerless. It relies entirely, not on anything 
 it can itself do, but rather on the habits of self-restraint 
 and the moral sense of the community, in order to fence 
 round the life of each with invisible ramiiarts. The life of 
 every man may be said to lie open to the mercy of each and 
 all his fellow creatures every hour of his existence ; and yet 
 such is the self-control and the far-reaching circumspection 
 
 ^ 2 Inst. 30.
 
 CH. IV.] DEFINITION OF MURDER. 323 
 
 manifested by his neighbours, that all the transports of 
 passion, all the jawing conflicts of self-interest, that visit 
 the human breast, yield but seldom an occasion for any one 
 of them being tempted to the dire extremity of taking 
 another's life.^ A few cases, nevertheless, occur, where all 
 the motives of prudence and reflection, all the calculations 
 of consequences are unavailing to stay the fatal blow, and 
 when the deadliest crime known to the law, at least 
 between subject and subject, is committed — that of one 
 human being murdering another. 
 
 If murder is the earliest crime recognised. — Though 
 murder is the most serious of all crimes known to the law, 
 yet it by no njeans follows, that it is the first to make its 
 appearance in the code of semi-barbarous communities. 
 It obviously involves a more abstract idea than some other 
 crimes, as, for example, larceny, for the savage mind would 
 no doubt be more vividly impressed by the loss of some 
 article of property, a bow, or an arrow, or a head of game, 
 than any attack on human life ; and indeed one can scarcely 
 suppose savages taking away each other's lives for the 
 mere gratification of malice, which is probably a refinement 
 of civilised life involving considerable reach of reflection. 
 Larceny, and probably adultery and witchcraft, are the 
 crimes which present themselves first to any tribe or com- 
 munity emerging from barbarism. But whether it be sooner 
 or later in becoming a recognised crime, murder must at a 
 very early stage of society take up its place, and it must 
 always ultimately stand at the head of all the wrongs done 
 between man and man. Even the untutored Indian admits 
 that all have a right to live, and that murder is wrons.^ 
 
 Definition of murder. — Murder may be defined to be " the 
 malicious killing by one human being of another human 
 being, by some external or other means satisfactorily traced ; 
 and a malicious killing is a killing not justified either 
 by self-defence, or under colour of any lawful conduct or 
 business of the killer." 
 
 Judges have often expressed dissatisfaction with the 
 definitions attempted of murder, because these necessarily 
 
 ' " Tlie law of pjiigland allows no man to value himself at such a 
 rate, as if the blood of his neighbour were a fit Bacritioe to expiate 
 every mean and slight affront." — 6 St. Tr. 780. 
 
 2 2 Schooler. Ind. 195. 
 
 Y 2
 
 324 OF THE SECURITY OF THE PERSON. [CH. iv, 
 
 refer to or assume knowledge of things extraneous, such as 
 is implied when it is said to be a killing " without just cause 
 OT excuse," the chief difficulty then being as to what is a 
 just cause or excuse. To know this requires, undoubtedly, 
 long explanations and references to nearly all the lawful 
 occupations of mankind. And yet all this must be known 
 before anyone can comprehend fully what murder is, it 
 being nothing else but the negation and antithesis of all 
 these just causes and excuses for human conduct. Hence 
 Foster, Hawkins, and Blackstone lirst treat of justifiable 
 homicide and manslaughter, before beginning to explain 
 what murder is ; but even that arrangement little advances 
 one's knowledge. The difficulty is inherent in the subject, 
 and altogether ineradicable. 
 
 Analysis of definition of murder. — The foregoing definition 
 suggests various difficulties in the terms used ; indeed, at 
 every turn in the law the natural obscurity of language is 
 the leading obstacle to an understanding of the things 
 meant. It will accordingly be necessary, in further clearing 
 up such ambiguities as are unavoidable, to discuss somewhat 
 in detail the leading elements of the definition. This will 
 be best done by explaining what is a human being — what 
 is meant by malicious — what by killing — what by external 
 means — what by self-defence— and what by lawful conduct 
 or business. Each and all of these terms and phrases will 
 be found to imply various distinctions and qualifications 
 necessary to be borne in mind by those who would clearly 
 comprehend the law of murder. It is true that the crime 
 of murder bears the name of treason, when the object of the 
 murderer is the person of the king or queen of the realm, or 
 the eldest son and heir for the time being, or some high 
 functionaries of the government. But the law, as regards 
 these, will be more appropriately treated under the respec- 
 tive heads of Government and Judicature, of which they are 
 a necessary ])art, and in reference to which alone they are 
 of special importance. 
 
 Murder means killing of ahuman being. — Murder is applied 
 solely to the destruction of the life of a human being. 
 And the crime is tlie same, wliether the person murdered 
 be rich or poor, male or female, old or young, a relative or 
 a stranger, a wife or a husband, a parent or a child, the 
 sick or the hale, a native or a foreigner, and, if slaves
 
 CH. IV.] MURDER OF FOREIGNERS. 325 
 
 existed, a freeman or a slave. The circumstances of each 
 case and the relationship between the parties do not affect 
 the crime itself, though they may to some extent influence 
 a court in fixing the quantum of the punishment. 
 
 It may seem a truism to say that murder applies to all 
 human beings, %Adthout distinction of person or race, and 
 that the law guards human life from the first beginnings 
 of infancy till the hour of natural death. But it is in 
 this catholic and broad sense, that modern civilisation 
 differs so widely from ancient and barbarous times. The 
 law of civilisation tolerates no distinctions whatever — 
 allows no paltering or equivocation, no refinements of 
 intention or motive, no calculations as to final causes, no 
 speculations as to the worthlessness of the life sacrificed. 
 It is enough that the object of the crime has the semblance 
 of humanity. Yet here it is, that ancient nations and 
 barbarous tribes show how obtuse is the perception they 
 have of this ultimate principle and infallible axiom of 
 modern law, that every human being has a right to live. 
 They seem to have had a vague idea, that murder was 
 wrong as regarded some persons, but saw no harm what- 
 ever, and sometimes saw much merit, in disposing in that 
 way of many classes of people for various reasons, and 
 perhaps oftener for the want of any reason at all. 
 
 Murder of foreigners. — Barl )arous nations, for example, 
 are slow to see any harm in murdering foreigners and 
 travellers, though they may be careful of their own 
 people. With us all persons, whether foreigners^ or not, 
 are equally within the protection of the law ; and if 
 killed under circumstances which would make the crime 
 
 ^ The Thugs of Hindostan were an organised community of men 
 who believed they had a divine mission to murder and rob all man- 
 kind, and they practised every kind of cruelty and treachery on 
 innocent travellers. They had no particular spite or animosity 
 against any of their victims, and were models of decorum in their 
 private and domestic relations. But while in their own circle they 
 were blameless, yet, having this divine mission, they felt bound to 
 strangle and murder every person out of that circle who fell in their 
 way, and this for the good of themselves and their families. This 
 fraternity lasted 200 years, and was put down between 1818 and 
 1853. — HuttorCs Thugs. An Asiatic tribe, which lias bequeathed to 
 us their own name of Assassins, were said to have considered it their 
 vocation to go and cut tlie throat of any person, if ordered by their 
 chief to do so.
 
 326 OF THE SECURITY OF THE PERSON. [cu. iv. 
 
 murder as regards a natural born subject, it is equally a 
 murder as regards an alien enemy found in this country 
 and not killed in the heat of war.^ And though out- 
 laws and persons attainted of felony or in praemunire are 
 subject to disabilities, and were once hunted and killed 
 like wolves, they have long been entitled to the same 
 protection against murder and all assaults as other 
 persons.^ 
 
 Origin of word murder. — It is to this barbarous notion 
 as to the comparatively venial offence of slaying a foreigner, 
 that we owe to some extent the very name of this crime. 
 The word murder, "•murdrum" has been generally ex- 
 plained to be the name given to a fine laid upon a town- 
 ship, in which a person unknown was found slain. The 
 legal presumption then made was, that the unknown man 
 was a Dane ; but the fine was avoided by positive testimony 
 that he was only an Englishman, the proceeding for that 
 purpose being a presentment of Englishry. This jealous 
 protection of the Dane, and afterwards extended to the 
 Norman, was not finally removed till the 14 Edward III. 
 But the old name of the fine was kept up as the name of 
 the crime of murdering a human being.^ And though this 
 practice of presentment of Englishry in case of murder, 
 which was once attributed to Canute, is now generally 
 regarded as one of the innovations of the Norman Con- 
 quest, and which went out after Magna Charta,* yet the 
 principle or notion on wliich it was based was nothing 
 else than this, that the life of one race was more jealously 
 to be protected than that of another, and that other lives 
 were of little or no consequence in comparison.^ 
 
 Murder of infants. — Where the murder is of a very 
 young child, there is now no distinction in point of law 
 
 1 1 Hale, 433. 
 
 2 Ibid. Before 5 Eliz. c. 1, persons attainted in prasmunire had 
 no protection a<^ainst murder. — 24 Hen. VIII. B. Coron. 197; 1 Hale, 
 497. So far bacrk as 2 Ed. III. outlaws were protected against being 
 killed.— (7o. Lit. 128 b. 
 
 3 1 Hale, 447 ; 1 Stubbs, Const. H. 382 ; 14 Ed. III., St. 1, c. 4. 
 
 * 1 Stubbs, Const. Hist. 196, 382, 549 ; Laws, Hen. I., § 92 ; 14 
 Ed. HI., St. Ic. 4. 
 
 ^ The Salic Law allowed less composition to be paid for killing a 
 Roman Mian a Frank or barbarian ; but tbo laws of the Burgundians 
 and Visigoths were said to be impartial. — Montesq. b. xxviii. c. 3.
 
 CH. IV.] MURDER OF CHILDREN AND THE SICK. 327 
 
 between that and cases of adult persons. The broad 
 principle is laid down, that whenever a child has been 
 born, and has an independent circulation of the blood, even 
 though the umbilical cord be not severed, so as to fulfil the 
 description of a living human being, the killing of such 
 child is murder.^ It is true that in many cases where a 
 child is killed at the time of birth it may be difficult 
 to ascertain whether the child was born alive, and then 
 killed, or was killed before it was finally separated from 
 the mother, or during the act of separation. These ques- 
 tions are frequently so mixed up with other offences 
 falling short of murder, and known under other names, 
 as concealment of biith, and procuring abortion, and 
 infanticide, that they will be more appropriately considered 
 in a subsequent chapter under the head of " Variations 
 in the Laws of the Person caused by Age."^ 
 
 Murder of sick and aged persons. — And though the old 
 and sick are treated as entitled, like the rest of their 
 fellow creatures, to enjoy what life is in store for them, 
 and it is murder to shorten their allotted span by an 
 hour, if it can be made clear that the act was done 
 maliciously, and had that effect, it is singular that so 
 many barbarous tribes should have shown a callous and 
 brutal disposition towards human beings arrived at those 
 stages.-'' 
 
 ' R. V Enoch, 5 C. & P. 539 ; R. v Wright, 9 C. & P. 754 : R. v 
 Sellis, 7 C. & P. 850. 
 
 2 See jws^ Cli. ix. Hale regarded it impossible, according to the 
 law of England, to treat the procuring or eflEecting of abortion either 
 as murder or manslaughter. Coke leaned to the opposite view. — 
 See post, Ch. viii. 
 
 3 Ihe Sioux Indians of North America and some African tribes 
 bring up their children to view murder as the great object of 
 ambition. — Galbraith, Ethnol. Journ.^ 18G9 ; Burtoji's Africa, 176. 
 In Alaska old. sick, and useless persons are put to death, out of 
 kindness and affection, by their relatives. — DaWs Alaska, 384. In 
 Fiji, in Tahiti, and among the Pjsquimaux and the Missouri Indians, 
 parents are killed or buried alive, whenever they are burdensome 
 or disabled by sickness. — 1 Williams' Fiji, 183 ; 1 Ellis, Pol. Res., 
 365 ; Parry's Three Voyages • Wilkes^ Expl. Exped. Among the 
 Kaffirs, the Congos, and the Arrakanese, the sick and dying are 
 taken to a thicket and exposed, or drowned, or tossed into the air. 
 —Maclean's Kaffirs, 161 ; 6 Unio. Mod. Hist. 418, 469 ; '6 Ibid. 230. 
 
 Herodotus said the Indians of the East, and the Essedonians, 
 and Massagetes, killed and ate their sick. — Herod, b. i., b, iv.
 
 328 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 Where murdered person is confidentially related. — Many 
 ancient nations singled out from the common case those 
 who murdered another who was confidentially related. 
 Eastern nations as well as the ancients had an especial 
 detestation for parricides, and for slaves who kill their 
 masters, though it seldom dawned on their minds that 
 masters could possibly murder their slaves. And though 
 in modern times we make no distinction, but treat all 
 murderers as on one lev<^l, our ancient law followed the 
 traditions of their elders. By our old law, any mischief 
 which one knowingly did or procured to be done to 
 another while pretending friendship was deemed treason, 
 and was punished sometimes with death, sometimes with 
 loss of limb, with pillory or imprisonment, according to 
 the nature of the case.^ And among the Anglo-Saxons 
 murder in a tavern was deemed an enormous crime. "^ 
 And if murder was committed by any one who had 
 been three days a guest, his host was bound to bring that 
 guest to justice, or himself answer for the crime.^ If a 
 servant killed his master whom he had left, owing to a 
 grudge contracted during the service ; if a wife, after 
 being divorced a mensd et tore, killed her divorced husband ; 
 and if a clergyman killed the bishop who ordained him, 
 or in whose diocese he was beneficed, or the metropolitan 
 of such suffragan, or diocesan bishop, these were treated 
 by the statute of 25 Edward III., c. 2, as crimes of petit 
 treason, involving a higher punishment than felony. 
 This distinction has long been abolished, and the sentence 
 of burning passed on women convicted of petty treason 
 as well as high treason was changed in 1790* into that 
 of hanging, and this identity continues to the present 
 day.^ 
 
 The Medes bred a number of large dogs for the express purpose 
 of devouring the bodies of the dying, as it was dishonourable to 
 die in bed or to be buried in the ground. — Bardesan, ap. Euseh. 
 The ancient Germans for several ages killed their old and sick. — 
 Ckritit. Ilurtnuck, Fr. Antu/. xiii. 
 
 1 Britt. b. i. c. 9. ^ Anct. Laws, Ethel. Eadr. ^ Anct. Laws, 
 Hloth. Eadric. ^ 30 Geo. HI. c. 48. » 9 Geo. IV. c. 31 ; 
 
 •24 & 25 Vic. c. 100, § 1. 
 
 Plato in his laws directed a murderer to be punished with death 
 and refused burial. But in the case of one murdering his parent, 
 or brothers, or children, the murderer was to be punished witli
 
 CH. IV.] MENTAL CAPACITY OF MURDERER. 329 
 
 Merited capacity of murderer. — The malice, which is an 
 ingredient of the crime of murder, implies that the party 
 is in full possession of his senses and is able to discriminate 
 between ri«iht and wrong. In general a lunatic, or idiot, 
 or an infant under the age of discretion, is incapable of 
 committing a crime, or rather is exempt from the usual 
 punishment, by reason of his incapacity to know what he 
 
 death at an appointed place where tliree roads met, and to be cast 
 out of the city naked, and the magistrates were to throw stones on 
 his head, and thereafter cast his body, unburied, beyond the borders. 
 — Plato^ De Leg. b. ix. And a slave who killed his master in self- 
 defence was treated as a parricide, which Montksquieu says was 
 a law contrary to nature. — Montesq. b. xxvi. c. 3. When a Roman 
 was found murdered in his house, all the slaves under his roof at 
 the time were first put to the torture, and if it was thought they 
 had not done their best to defend their master, they were put to 
 death. And Adrian mitigated this rule by allowing only those 
 slaves to be killed who were near enough to prevent the murder. 
 — 6 Univ. Hist. 47. 
 
 Constantine, in restoring the old punishment of parricide which 
 the Twelve Tables had ordered, laid down the law to be, that if 
 any one hastened the fate of his parent, or son, or any the like 
 relation, which goes under the name of parricide, whether he 
 attempt it privately or publicly, he shall not be punished with the 
 sword, or w ith fire, or with any other common death ; but be 
 sewed up in a sack with a serpent, an ape, a cock, and a dog, 
 and thrown alive into the sea, that he might have no air to breathe 
 whilst he lived, nor earth to receive him when he was dead. — Cod. 
 Theod. lib. ix. tit. 15, leg. 1. The ancient Egyptians punished a 
 parricide by laceration with sharp reeds, then by throwing him on 
 thorns and burning him. — 2 Wilk. Anc. Egypt, c. 8. 
 
 By the law of Cliina the murder of a parent, grandparent, or 
 uncle, or aunt, was a crime of the deepest dye, and ranked amongst 
 offences of a treasonable nature. Even an attempt to kill was a 
 capital offence. The murderer suffered death by a slow and pain- 
 ful execution. If the party murdered or attempted to be murdered 
 was a more distant relative, the crime was also singled out for 
 severer punishment than in ordinary cases. — Staunton's Code of 
 China, 306. There was a saying in Japan that the same heaven 
 could not cover a man and the nmrderer of his parent, master, or 
 elder brother ; and he could with impunity, on giving notice to the 
 public authorities, kill such murderer. — Dickson's Japan, 256. And 
 the slaying of a master was deemed a species of treason, and the 
 murderer's family was wholly extirpated. — Jb. In Korea the wife 
 who had killed her husband was buried alive up to the shoulders 
 in a pit in a highway, and an axe was laid near her, and each 
 passenger, except a nobleman, was bound to give her a stroke on the 
 head, — 7 Pink. Voy. 539.
 
 330 OF THE SECURITY OF THE PERSON. [cH. iv. 
 
 does. Hence it is a usual defence to all indictments that 
 the party charged was at the time in a state of mind 
 which deprives him of all responsibility for his acts. As 
 the non-liability of lunatics and others incapable of legal 
 discretion is an incident of their status, and is not peculiar 
 to any one crime, the distinctions as to the usual tests of 
 soundness of mind are treated more appropriately under 
 another head. And the defence of mental incapacity is to 
 be carefully distinguished from mere ignorance or want 
 of education and knowledge, for the law presumes that all 
 alike, whether educated or uneducated, suhiciently know 
 the law so as not to set up their ignorance as any excuse. 
 Hence a foreigner on landing in England is no more 
 excused from committing a crime than if he were a native- 
 born subject.^ It is true that ignorance of a specific fact 
 is on a different footing, and may make a great difference 
 in liability, both for crimes and civil acts. If, for example, 
 a man intending to kill a thief or housebreaker in self- 
 defence, by mistake kills one of his own family, this takes 
 such a case out of the category of crime, and reduces it 
 to a mere accident or act of God.'^ 
 
 Murder hij drunkards. — Though the rule is, that in order 
 to establish the crime of murder it must be presumed or 
 shown that the murderer is a person in possession of 
 reason ; this rule may be supposed to suffer some variation 
 where, at the moment of committing the fatal act, the 
 murderer is in a state of intoxication. Though drunken- 
 ness is a voluntary act, and every man must be taken to 
 intend the natural consequences of his act, it must be 
 observed that murder is not such a natural consequence, 
 nor can it be said that a man who is drunk can entertain 
 that kind of malice which is the chief ingredient of the 
 crime of murder, and proceeds from a mind possessed of 
 firmness of purpose. A drunken person is scarcely in a 
 state to entertain an intent at all, either malicious or not. 
 Though, therefore, drunkenness will not be any excuse 
 for crime, yet if in the condition of the prisoner malice 
 
 1 R. V Esop, 7 C & P. 456. 
 
 2 1 Hale, P. C. 42. Tlie subject of ignorance, as a branch of 
 mental capacity, is treated under tlie head ©f Variations in the Law 
 of the Person, produced by Mental Capacity.— See post, Cli. xi.
 
 CM. IV,] MURDERER A FREE AGENT. 331 
 
 cannot be presumed, he can only be found guilty of nian- 
 slaugliter.^ 
 
 Tke murderer must he a free agent — Again, it is an 
 essential ingredient of the crime of murder, that tlie 
 murderer should be a free agent in what he does, that is 
 to say, he must be so far master of his own actions as not 
 to be subject to the compulsion of another. Thus, to seize 
 the arm ot another which holds a weapon, and with it to 
 kill a third person, or instigate a lunatic to kill a third 
 person, is murder, not in the agent or medium, but in him 
 who uses that agent as he would use an ordinary weapon.^ 
 But if the compulsion operating on the agent is merely 
 mental, and amounts, for example, to a threat to kill B if B 
 do not kill C, this would be no defence to B if he killed C, 
 for if the life of one or other is to be sacrificed there is no 
 reason why B should make an innocent person suffer for 
 the iniquitous pressure put on himself. And he can 
 usually protect himself by the courts of law in such circum- 
 stances.^ Some legal casuistry has, however, been exercised 
 on the niceties of this case. Lord Hale has said that the 
 person assailed with the threat ought rather to die himself 
 than kdl an innocent person.* While others hold that 
 by analogy to the case of treason being committed under 
 compulsion or fear of present death, in which case the 
 treason is extenuated, so it ought to be in a case where 
 death of a third party is caused^ under the fear that other- 
 wise the perpetrator will himself be murdered. The 
 defence that one person killed another to save his own life 
 must always be scrutinised with rigour in favour of the 
 innocent third party ; and should such a defence ever be 
 made, it is ditticult to see how the law could treat such 
 homicide as less than manslaughter. And yet the next 
 case to be mentioned makes even this doubtful. 
 
 Tvm sliipwrecked persons on a plank. — This is the case 
 which was referred to by Lord Bacon, where an innocent 
 person's death may be caused without crime, and as it were 
 involuntarily, or by compulsion ; as where two shipwrecked 
 persons get upon the same plank, and one thrusts the other 
 
 1 E. V Thomas, 7 C. & P. 817 ; R. i; Cruse, 8 C. & P. MG ; R. v 
 Monkhouse, 4 Cox, C. C. 55. ^ 1 Hale. P. C. 433 ; 1 East. P. C. 
 
 c. 5, § 14. 2 1 Hale, P. C. 51 ; Dalt. c. 145. * 1 Hale, 51. 
 
 s 1 East, P. C. c. 2, § 15 ; Ibid. c. 5, § 61.
 
 332 OF THE SECUEITY OF THE PERSON. [ch. iv. 
 
 off under the urgent apprehension that both cannot be 
 saved. In such a case the law seems to support the 
 unscrupulous instinct of self-preservation, and holds this 
 justifiable.^ It is true the legislature has expressly made 
 it felony to unlawfully and maliciously prevent or impede 
 another from saving his life from shipwreck.^ But this 
 case of one drowning man killing another in the circum- 
 stances above named, cannot be brought within the category 
 of unlawful and njalicious acts. So that the point seems 
 still to rest on the doctrine of the common law, and the 
 common law may be taken quite consistently to treat the 
 act of killing a rival in these circumstances as blameless. 
 Such a case, indeed, like the one preceding, comes more 
 properly under the head of self-defence, and though pro- 
 bably a human tribunal will seldom require to decide as to 
 the part each takes in such emergency, it is agreeable to the 
 .spirit of the law, to hold him v/lio drowns the other in 
 order to save his own life blameless ; for the law cannot 
 appreciate or understand any of the higher motives of 
 conduct, and the inherent selfishness of human nature 
 leads each to prefer his own life to that of everyone else. 
 It is on this ground (and many other kindred views will 
 be found to prevail in the law), that such a compulsory 
 homicide as killing his drowning companion, however 
 revolting his conduct seems to all notions of the Ixigher 
 humanity, will be deemed blameless by the law. 
 
 Malice as an ingredient of murder. — The most con- 
 spicuous ingredient in the crime of murder is the malice 
 of the murderer — a mental state which is variously 
 described or explained, but means the feeling of anger, 
 revenge, or fury towards the person murdered, and which 
 is the motive, impulse, and immediate cause of the act. 
 
 Much speculation has been spent on the origin of this 
 word malice, or malitia. Cicero treats it as necessarily 
 importing fraud or deceit in the means used to compass 
 the end ; ^ and this may be admitted as nearly always true. 
 But it is so common to find the meaning of a word change 
 more or less insensibly in every language, that we need 
 not attribute much importance to its earliest use. It is 
 
 1 Bac. Max. 5 ; 4 Bl. Com. 18B ; 1 Hawk. c. 28, § 26. ^ 24 & 
 25 Vic. c. 100, § 17. a Cic. De Nat. Deor. lib. iii. § 30 ; De 
 
 Offic. lib. iii. § 10.
 
 cii. IV.] MURDER AND MANSLAUGHTER. 333 
 
 enough that it has become a term of art applicable pre- 
 eminently to tliat state of mind whicli precedes, and is an 
 essential ingredient of the crime of murder. This mental 
 state of the murderer has been variously described as a settled 
 anger — a desire of revenge — a heart full of gall — a rancour 
 of mind — a mind cankered by deliberate wickedness — a 
 heart regardless of social duty, and fatally bent upon 
 nrischief — a deliberate design to take life without any 
 excuse whatever.^ 
 
 Malice is the element distinguishing 'murder from man- 
 slaughter arid accident. — And it is at this point that it is 
 most convenient to contrast murder with manslauohter, 
 for where no malice exists or can be proved to have existed 
 in the mind of the murderer or the slayer, yet the 
 person who kills another may be guilty of the crime of 
 manslaughter, which, though not malicious, yet implies an 
 unlawful reckless and grossly negligent disposition of 
 mind towards his fellow man, while doing the act which 
 was the immediate cause of death to another. Accord- 
 ingly, following the definition of murder, manslaughter is 
 "the unjustifiable killing by one human being of another 
 human being by some external or other means satisfactorily 
 traced ; and an unjustifiable killing is where neither self- 
 defence nor any lawful business or conduct of the killer 
 excuses it." When the death of another has neither been 
 caused by the malicious act of any person, which is nmrder ; 
 nor by the unlawful reckless and grossly negligent disposi- 
 tion of any person, which is manslaughter; nor by that 
 species of negligence described in a former chapter, which 
 gives rise to an action for damages in some situations ; 
 then the conclusion is, that the death nmst have been 
 merely an accident or misadventure — as one of the chances 
 of life for which nobod}'^ is to blame. All other causes of 
 death except accident must thus in the eye of the law come 
 under the category of murder or manslaughter or actionable 
 negligence. It is true that besides mere accident and 
 
 1 Some judges, as Liitledale, J., have thought it a sufficient de- 
 finition to say, that malice denotes a wrongful act done intentionally 
 ■without just cause or excuse. — Macpherson v Daniels, 10 B. & C. 
 1272. While Best, J., said it was enough to describe malice as 
 any wicked or mischievous intention of the mind. — R. v Hai-vey. 
 2 B. & C. 268. The former of these seems to be as accurate as a 
 negative account of positive acts can be made.
 
 334 or THE SECURITY OF THE PERSON. [cH. iv. 
 
 misadventure there is the case of a capital execution, but 
 that of necessity is an act for which no legal remedy what- 
 ever exists, simply because it is itself the carrying out of a 
 legal remedy requiring the death of the person punished. 
 
 Staundforde and Coke seemed to treat manslauuliter as 
 synonymous with chance medley, the distinguishing charac- 
 teristic of murder, namely, the malice as an ingredient 
 being left out in manslaughter; and hence the latter term 
 covered a variety of situations in which death was caused, 
 some of these being little short of accident or chance, and 
 otheis more or less involving an ingredient of carelessness 
 or blame. At that time the leading idea on which man- 
 slaughter was founded was, that it was a quarrel or sudden 
 heat ending in death, and rather accidental than intended. 
 On this subject, and as to the general bearing of the law 
 relating to the killing of a human being, it was well said 
 in argument: "He who takes away the life of another 
 is presumed to have taken it away deliberately and 
 maliciously, till it shall appear to have been the eHect of 
 necessity, of accident, or of sudden passion ; for as necessity 
 will justify and accident excuse the fact, an ungovernable 
 transport of passion will so far alleviate the crime as to 
 make that which Avould otherwise have been murder and a 
 capital offence manslaughter only, which saves the life of 
 the offender. This is a condescension the law shows to 
 the frailties of the human mind, which upon great and 
 sudden provocations cannot command itself nor maintain 
 its reason ; but whilst the law shows this condescension, it 
 guards the life of the subject with all possible caution and 
 reserve against the excess and abuse of the benignity. It 
 shelters no man whose mind is n(jt free, perfectly tree from 
 the guilt of malice, expressed in words or implied in action. 
 To be free from malice, he must have acted from the 
 impulse of a present passion without deliberation or 
 meditated mischief. Jf it should so have happened that 
 the provocation did not irritate, or, irritating, did not over- 
 come the reason, or, overcoming the reason, tlie mind cooled 
 and deliberated, or had time to cool and deliberate, and 
 then he fought and killed, he has incurred the yuilt of 
 malicious murder; for he did not act from the ini])ulse of 
 a present passion, and whatever motive actuated him, 
 whether some secret grudge, or an imaginary necessity of
 
 CH. IV.] MALICE EXPRESS AND PREPENSE. 3.'i5 
 
 vindicating his honour, or of satisfying the world of his 
 courage, or any other hitent cause, he is no object of this 
 benignity of the law. The law-books do not make it 
 murder only wliere the passion has actually cooled, but 
 where in tlie time that has passed it ought in reason to 
 have cooled. And in Major Oneby's case no more than an 
 hour had passed, and the judges thought that sufficient for 
 the purpose." ^ 
 
 Very slight evidence of negligence indeed will thus be 
 taken to justify a conviction for manslaughter. Thus, 
 wliere a man turned out a vicious horse on a common 
 through which there was a highway, and a child carelessly 
 strayed a little from the road and was kicked and killed by 
 the horse, this was held to justify a verdict of man- 
 slaughter.^ 
 
 Express and implied malice. — Malice has sometimes been 
 distinguished into express and implied malice, but this is 
 nothing but a loose way of indicating the kind of evidence, 
 out of which juries and courts infer the existence of the 
 ingredient which is sought for. When that thing is found, 
 whether in plain words, or by implication from acts or 
 words not plain, it is altogether immaterial by what 
 process it is discovered. All that requires to be said is, 
 that it is rather more difficult to make up one's mind in 
 one case than another. The words " express malice " would 
 of themselves naturally indicate, that the murderer had 
 published or expressed in plain words that he intended to 
 murder the object of his fury ; but this is seldom the case, 
 as all the selfish instincts of human nature generally com- 
 bine to save him from so openly publishing his shame. 
 What has been generally meant by the use of the words 
 " express malice," is merely, that that inference is drawn 
 from such conduct of the murderer as necessarily, or rather 
 prinid facie, imports dehberation, as by lying in wait, by 
 laying plans, or laying poison, and by expression of 
 grudges or ill-will ; whereas by implied malice has been 
 meant the same conclusion, drawn from conduct and acts 
 which do not of themselves so necessarily and clearly 
 im])ort deliberation beyond that of the moment.^ 
 
 JiJalice prepense. — Again, the word " malice " has often 
 
 1 Per De Grey, S. G., R. v Byron, 19 St. Tr. 1223. 2 ^ ^ 
 
 Dant, 1 L. & C. 567. '' 1 Hale, P. C. 451 ; 4 Bl. Com. 199.
 
 "lo 
 
 6 OF THE SECURITY OF THE PERSON. [cH. iv. 
 
 been associated with the word " prepense," but this latter 
 word means little more than is necessarily implied in the 
 other. The meaning of the word " malice " was only- 
 made a little more difficult, when a statute of Henry VIII. 
 first took away the benefit of clergy from the offence of 
 " murder with malice prepense," for the use of this phrase 
 set courts upon thinking to find out fine distinctions as 
 to what was prepense or not prepense. Prepense, in any 
 view, can mean no more than that kind of deliberate 
 anger or wickedness of mind which precedes the fatal act ; 
 and, indeed, if there was no previous consciousness, it 
 would be difficult to infer that discriminating ingredient 
 of malice which is necessary to enter into the legal, con- 
 ception of murder. 
 
 Secrecy not necessary to malice in murder. — Secrecy or 
 fraud, though often accompanying, is not a necessary part 
 of the notion of malice. It is true, that in Bracton, Britton, 
 and Fleta the wickedness of the act of murder is said to 
 be aggravated by the circumstances of secrecy or treachery ; 
 but it has long been settled to be a voluntary killing of a 
 person of malice prepense, and that whether it is done 
 secretly or publicly.^ Glanville also, in the time of 
 Henry II., treated murder as a secret killing, and all other 
 killings as homicide generally, but nothing now turns on 
 the secrecy of the act or the designs and marks of delibera- 
 tion that often precede murder. If the murderer were to 
 proclaim aloud what he was about to do in presence of a 
 multitude of people, it would be murder still. 
 
 Malice does not imply gain or profit to murderer. — 
 Though in some cases murder may be committed from 
 motives of lucre, it is obvious that it is perhaps more 
 frequently committed without a thought as to whether 
 profit or loss pecuniary will result. Cassius Longinus, 
 who acquired the reputation of the most severe of judges, 
 used to say, when investigating who was the criminal — cui 
 bono, that is to say, " tell me who is most benefited by the 
 crime, and I get very near the criminal." But this was 
 only the method of setting about the inquiry as to the 
 discovery of tlie murderer, which is altogether a different 
 question from that which regards the characteristics of 
 the criminal act. 
 
 1 17 St. Tr. 43 ; Staundf. P. C. 18 B. ; 3 Inst. 54.
 
 en. IV.] PERSONAL ANIMOSITY IN MURDER. 337 
 
 Fersonal animosity not necessarily implied in murder. — 
 Though the malice of the murderer often points to one 
 object, and is a personal and individual feeling exclusively, 
 yet it is not necessary to show, that he had a personal 
 grudge or revenge against the individual whom he killed. 
 It is, on the other hand, equally little to the purpose to 
 attempt to show that the murderer was an enemy of all 
 mankind, as some expressions seem to imply.^ Even if it 
 were possible to prove so wide a proposition, as that a man 
 is an enemy of the human race, this could only be proved 
 by a series of circumstances pointing to individuals. The 
 kind of malice which is an ingredient in the crime of 
 murder is not, as Macdonald, C. B., observed, what in 
 vulgar language is called spite ; it is a wicked, depraved, 
 and malignant spirit ; a killing from a wicked and corrupt 
 motive : it indicates a heart regardless of the life of man 
 and bent upon mischief- Though malice, therefore, is 
 generally harboured only against one individual, and is 
 with difficulty imputed as being entertained against several 
 or against the public, yet there are some states of blind and 
 uncontrollable passion, when a murderous disposition is 
 displayed against all comers, and indicates a design to 
 inflict death on the first person one meets, without the 
 least regard to who is the victim. This last disposition 
 satisfies at once the description of legal malice against 
 whatever individual happens to be killed.^ 
 
 And, on the other hand, if the feeling is sufficiently 
 shown against one individual, but the murderer, while 
 aiming at, misses his victim, and kills an innocent stranger, 
 the crime will not the less be murder or manslaughter, 
 according to the intention towards the principal object.'' 
 This, at first sight, may seem contrary to justice, inasmuch 
 as a murderer may have had no motive or desire what- 
 ever to hurt the person killed, and hence ought to be 
 treated as if this were a mere accident on his part. But, it 
 will be found, that there is no reason why the man who 
 killed and had a murderous intention, though not against 
 his victim, should have any benefit from such an accident. 
 
 > 1 Hawk. P. C. 29, § 12 ; 4 Bl. Com. 200 ; 1 East, P. C. 5, § 18. 
 ■^ R. V Wall, 28 St. Tr. 144. 3 r. y Mawgridge, Kel. 128. 
 
 « Foster, C. C. 262 ; K. v Conner, 7 C. & P. 438 ; Brown's Case, ) 
 Leach, 148. 
 
 VOL. I. Z
 
 338 OF THE SECURITY OF THE PERSON. [oh. iv. 
 
 Case of aiming at one and killing another. — This doctrine, 
 that it is equally murder if a stranger or third party is 
 killed, instead of the victim aimed at, is said to be justified 
 on this ground, that the law transfers the malice from the 
 one object to the other, by a doctrine which has been 
 caUed by Hale and Foster, a transfer of malice.^ Others 
 have described it as a transmutation or a transmigration 
 of motive. And sometimes the rule has been generalized 
 into this, that as it was in course of an illegal act being 
 done that the killing took place, it ought to be treated 
 as if the real intention of the killer had been actually 
 carried out. And Coke and Foster so explain it.- Where 
 a man gave poison in a roasted apple to his wife, intend- 
 ing to kill her, and she gave it to her child, who took 
 it and died in consequence, though the husband being 
 present tried to dissuade his wife from giving the apple 
 to the child, this was held to be murder of the child by 
 the father.3 Qq-^q calls it coupling the event with 
 the intention, and the end with the cause.* The doctrine 
 is, however, not quite clearly defined in its exact limits 
 and dimensions. Hale says that if a trespasser hunt 
 in a park, and his arrow glance from a tree and kill 
 a bystander to whom he intended no hurt, this is man- 
 slaughter, because the trespass was unlawful. And yet if 
 an unlicensed person shoot at a crow with a gun, and it by 
 mischance kills a bystander by the breaking of the gun, it 
 is but chance-medley, and no offence at all ; for the want 
 of qualification was but malum prohibitum, and will not 
 enhance the effect beyond its nature. Hale thus treats 
 the distinction as turning on whether the act that was 
 in progress was malum in se or malum, prohibitum, but 
 this is a loose distinction at best, and, as previously shown, 
 is incapable of being clearly defined.^ It has also been 
 held that if a large stone be thrown at one with a de- 
 liberate intent to hurt, though not to kill him, and by 
 accident it kill him or any other, this is murder. Again, 
 in another case, it was said, if A had shot at a tame fowl, 
 wherein another had a ])roperty, but not with intent to 
 steal it, and by such shooting had accidentally kdled a man, 
 
 1 18 St. Tr. 1073. * Gore's Case, 9 Rep. 81.. ^ Saunders' 
 
 Case, Plt)wd. 474 ; R. « Gore, 9 Rep. 81a. ". R. v Gore, 9 Rep. 
 
 81a. 5 Sec ante, p. 105.
 
 OH. IV.] AIMING AT ONE, KILLING ANOTHER. 339 
 
 he would then have been guilty of manslaughter, because 
 it was done in the prosecution of an unlawful action, 
 namely, committing a trespass on another's property. But 
 if A had had an intention of stealing the fo^\•], then such 
 accidental killing would have been murder, because done 
 in prosecution of a felonious act, namely, the intent to 
 steal.^ The rule, that, if A, intending by aiming at B to 
 nmrder B, miss B and kill C, then A is guilty of the murder 
 of C, may be justified in this way. A had the guilty mind, 
 and took means adequate to give effect to it. The effect 
 upon C is the same as if A had intended to murder C. 
 The only difference is an accident occurring between the 
 two acts — an accident caused by A going out of the range 
 of lawful business or conduct, and into a course not expected 
 or anticipated by C. There is thus no reason why A should 
 profit by this accident, and his guilt be the less punishable. 
 In such cases, indeed, if all that intervenes between the 
 two facts. As guilty attempt and the fatal stroke, is an 
 accident, it is better that C should be protected than that 
 A should go without punishment, seeing that in any view 
 A was to blame and C was not. If, however, A's intent 
 was not to murder B, but only to hurt him, and yet while 
 missing B he kills C, it will depend on the extent to which 
 A intended to hurt, and the means he used to carry out his 
 intent, whether it will be murder or manslaughter of C. 
 Hence it may be said to be a rule that the unintentional 
 killing of one when aiming at another, is murder or man- ■ 
 slaughter, according to whether the primary intention was 
 to murder, or only to do at most a trifling hurt, such as 
 would be compensated by an action at law.- 
 
 Provocation as ingredient in murder. — While murder 
 
 1 Per King, C. J., K. v Woodburn, 16 St. Tr. 80. Hobbes ridi- 
 cules the absurdity of such rule by putting this case as a reductio 
 ad absurd um, that if a boy, robbing an orchard, by chance fall from 
 an apple-tree and break the neck of a man standing underneath, 
 Coke would treat this as a murder — as if the boy had fallen of 
 malice prepense. ^ See R. v Horsey, 3 F. & F. 287. 
 
 Somewhat akin to the foregoing cases, where one crime or illegal 
 act is intended and another is the immediate consequence, is a case 
 which has occurred of kilHng a female infant by ravishing her. 
 There seems no reason why this should not be deemed murder, for 
 the greater crime need not merge in the lesser. — 1 East, P. C. c. 5, 
 § LB, 226 ; R. v Greenwood, 7 Cox, C. C. 404.
 
 340 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 is usually the result of deliberation, which again may be 
 the fruit of time, yet this feature of deliberation does 
 not necessarily require any particular interval of time to 
 mature it, for in the heat of the moment, and in the 
 course of some sudden quarrel or provocation, there may 
 be a sufficient deliberation to supply evidence of malice.^ 
 Nevertheless, as the state of mind at the time, if due to 
 sudden indignation or short frenzy, is viewed with less 
 displeasure than a settled malignity of purpose, the 
 practice of mankind and the voice of the law agree 
 in acknowledging this infirmity of human nature, and 
 singling out certain grounds of provocation as reducing 
 a crime to manslaughter, which otherwise would be deemed 
 murder.^ The law, it is said, has ever been indulgent to 
 the passions of men. And while the law permits the 
 excess of anger and passion to extenuate murder, yet it 
 must be such a passion as for the time deprives him of 
 his reasoning faculty, and such, that reason has not resumed 
 its place.^ Hale said that no amount of provocation by 
 mere words would justify killing, or reduce the crime of 
 murder to manslaughter, and that all the judges except 
 one, in Lord Morley's case, so agreed; but he sa}'s it was 
 also held that a menace of bodily harm would be such 
 a provocation as to make the offence but manslaughter, 
 a qualification not contained in the report of that case.* 
 
 It is obvious, that if a person has been previously 
 assaulted or ill-used to such a degree, that a man of 
 ordinary firmness and discretion would strike his assailant 
 instead of giving vent to his feelings in words, or waiting 
 for slow redress in a court of law, and if this is done in a 
 sudden transport of passion, the motive of the act is of a 
 kind very different from that settled malice which is the 
 indispensable ingredient of murder. The law accepts 
 anger as a lawful state of mind. And yet the circum- 
 stances require to be closely scrutinised so as to distinguish 
 unjust from just resentment — a frivolous and petty out- 
 burst of passion from grave and well-groimded retaliation 
 — a moderate use of force or of some harndess instrument 
 at hand, from reckless and wanton use of a deadly weapon 
 
 1 Per Holt, C. J., Kel. 127. 2 y^st C. L. 315 ; 1 East, P. C. 
 
 c. 5, § 19. 3 17 St. Tr. 39, 51. -• 1 Hale, 455 ; Kel. 55 ; 7 St. 
 
 Tr. 421.
 
 CH. IV.] PROVOCATION IN MURDER. 341 
 
 — the resort to violence or severity altogether dispro- 
 portioned to the ground of offence from a moderate 
 chastisement — the heat of the moment from settled 
 revenge after the blood has cooled. 
 
 Some reasons are too trifling to justify any man in 
 using force, or giving a deadly blow, it being deemed by the 
 law that all persons must learn to bridle their passions to a 
 reasonable extent, and bear even insults with some equani- 
 mity, and witliout resorting to violent retaliation. Thus, 
 an unlawful killing would be deemed murder, and not man- 
 slaughter, if the only provocation set up was mere use of 
 insulting words or gestures ; ^ merely taking the wall of 
 one ; or merely using threats of violence, unless these are 
 likely to be inmiediately carried into execution ; or merely 
 seeing one trespass on lands, though often warned not to 
 do so ; or merely seeing one stealing wood.^ And even a 
 slight blow will be no sufficient provocation to reduce the 
 crime to manslaughter, though insulting words may be 
 proved to have enhanced the passion.^ 
 
 In estimating the degree of provocation, it is always 
 important to consider whether the means used to give 
 effect to natural resentment be not greater than what was 
 necessary. Retaliation is natural and unavoidable in many 
 situations ; but there must be a reasonable adaptation 
 between tlie means and the end, or rather the punishment 
 must not be too severe for the affront. Blow may answer 
 blow, but the one should only exceed the other by slight 
 gradations, sufficient to show that insult, if insult is 
 meant, can be repelled. If, for example, a box on the 
 ear is immediately avenged by a stab with a knife or 
 deadly weapon, or by a blow of great violence, this mode 
 of retaliation shows so culpable a disregard of what is 
 due to the occasion, that if death ensues, even though 
 malice may not be justly inferred, so as to establish the 
 crime of murder, still the lesser guilt of manslaughter is 
 clearly incurred. People who cannot control their temper, 
 and who take the law into their own hands, must at least 
 take care not to punish an adversary with greater severity 
 
 » Fost. C. L. 290 ; 1 Hale, P. C. 455 ; 1 Hawk. P. C. c. 31, 
 § 33 ; 1 East, c. 5, § 20. 2 Holloway's Case, Cro. Car. 131 ; 
 
 Palm. 545. » R. v Lynch, 5 C. & P. 324 ; R. v Sherwood, 1 C. & 
 K. 556 ; Stedmaii's Case, Fost. 292.
 
 342 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 than the law itself would do, and if they do not take this 
 care, the risk will fall on their own head. Persons may 
 quarrel and be reconciled, or an old grudge may be revived 
 and burn with increased fury. But wherever there is 
 mixed up with the circumstances of the death some provo- 
 cation, care must be taken to see whether the provocation 
 was real or pretended, whether the blood had time to 
 cool, however great might be such provocation, for the 
 character of the crime will depend on the reasonableness 
 of the inference that malice did or did not govern the 
 fatal act.i 
 
 It is difficult to extract rules as to this matter without 
 knowing the surrounding circumstances, but manslaughter 
 only has been deemed to be committed where tlie death 
 was caused by the immediate revenge of a gross personal 
 indignity f or revenge of a blow on the face drawing blood,^ 
 or revenge of an arrest without proper authority.* And 
 the , moderation and unexpected result of the act will also 
 negative malice and reduce the crime to manslaughter, as 
 when the instrument used was not calculated to endanger 
 life ; ^ or where it was only a tin can or stick that was used 
 to strike.^ In these cases the jury must say whether the 
 intention was to kill or merely to do some slight hurt. 
 
 Mutual fighting and a fatal issue. — Again, in mutual 
 fighting, a balancing of circumstances sometimes gives 
 murder and sometimes manslaughter as the true character 
 of the act. Where a fight or duel is engaged in with 
 deliberation and concert, or even without such delibera- 
 tion, if express malice be developed in course of the 
 fight, and a fatal issue ensue, this will be murder. But if 
 in the heat of passion a fair fight continues, and nothing- 
 shows disproportionate violence or anger, this will be 
 nothing but manslaughter.^ In such circumstances the 
 materiality of the inquiry, Who gave the first blow ? 
 ceases altogether after a series of blows have been inter- 
 changed. But where a sword or knife was drawn, after a 
 
 ' 1 Hawk. P. C. c. 31, § 30 ; 1 Hale, P. C. 452 ; Plowd. 100. 
 2 Kel. 135 ; 4 Bl. Com. 191. 3 gtednian's Case, Fost. 292. 
 
 4 Buckuer's Case, Sty. 467. •''' Turner's Case, Coinb. 407 ; 1 L. 
 
 Rayin. 143 ; 2 L. Raym. 1498. « R. v Howlctt, 7 C. & P. 274. 
 
 ' 11. V Walters, 12 St. Tr. 113 ; R. -y L. Byron, 11 St. Tr. 1177 ; R. v 
 Ayes, R. & K. IGG.
 
 CH. IV.] KILLING IN MUTUAL FIGHTING. 343 
 
 long heat of vaiying success, then it is murder ; ^ and the 
 same whether the struggle began in play, if it is carried 
 on in anger.2 And where a stranger interferes in a fight 
 and takes a side, it depends entirely on what was his 
 motive, and the nature of the exigency, for according to 
 that he may or may not be in a better position than the 
 combatants if he identify himself with one.^ 
 
 Fatal accident in contests of skill and 'prize-fights. — The 
 case where contests of skill and strength occur also 
 stands on a delicate footing. There are some of these 
 which the law looks upon as innocent if fairly conducted, 
 and with a single eye to the professed object, namely, to 
 develop strength, foresight, or endurance. Such may well 
 be considered to be the case with wrestling, fencing with 
 foils, foot-races, which, though attended with occasional 
 danger, yet have for their object nothing calculated to 
 hurt or maim an adversary for the mere sake of injury. 
 Hence, if any fatal issue arise, it will usually be treated 
 as accident or misadventure.'* On the otlier hand, prize- 
 fights, duels with swords or pistols, cudgel-playing, 
 though some of them are incidentally attended with 
 only harmless results, are primarily intended to excite 
 the passions of the parties and spectators to such a 
 degree that each endeavours to achieve a victory over tlie 
 other at any cost, and though begun with a show of fair 
 play, often become heated with passion, and develop such 
 malignity of hatred and recklessness of life, that all the 
 elements of criminal disposition and of malice are present. 
 Hence, if any fatal result occur, the guilt of murder more 
 frequently than manslaughter will fall on the adversary 
 who kills. Some of these contests will be viewed with 
 different eyes by judges, according to their idiosyncrasy, 
 whenever the sport is near the dividing line of the lawful 
 and the unlawful. Hale seemed to think a fatal accident 
 
 1 R. V Snow, 1 Leach. 15L 2 R. v Camiiff, 9 C. & P. 359. 
 
 3 1 Hale, 484 ; 1 East, P. C. c. 5, § 58 ; U. v Bourne, 5 C. & P. P2U. 
 
 ^ Fost. 2G0 ; 1 East, P. C. c. 5, § 41. And the same conclusion 
 was come to by the ancients, for in the public games in Greece and 
 Rome, should a fatal accident occur it was deemed misadventure 
 and nothing more. — Plato, Leg. b. vii. ; Dig. ix. 2, 7 ; 2 WheioeU, 
 El. Mor. § 116. And in our own law it was once said that if by the 
 king's command the sword-playing took place, any fatal issue would 
 be deemed only accident. — 1 Hale, 473 ; 4 Bl. Com. 1G7.
 
 ;}44 OF THE SECURITY OF THE PERSON. fcH. iv. 
 
 hi course of wrestling, cudgelling, foils, and like diversions 
 ought only to be treated as manslaughter ; while Foster, 
 treating these as manly diversions, seemed to treat them 
 as mere accidents and nothing more, or nothing but legal 
 negligence. Each judge relied on Sir J. Chichester's case 
 for the inference he drew as to the rule of law.i Much 
 must necessarily depend on the weapons used, if any, and 
 how they are used. Yet Sir M. Foster says that in cock- 
 throwing, where a man in throwing missed his aim and killed 
 a child looking on, he had ruled it to be manslaughter, for 
 it was a barbarous, unmanly custom, frequently productive 
 of great disorders, and dangerous to bystanders, and one 
 that ought to be discouraged. The views of the law in 
 such cases will vary from age to age, and what would be 
 deemed in accordance with the rougher manners of former 
 times may be intolerable in ours. 
 
 How far for the jury to decide on malice. — Since the critical 
 point in question of unlawful killing is thus the malice of 
 the killer, the presence of which as an ingredient makes 
 the offence murder, and its absence makes it manslaughter, 
 it is important to know, whether and how far it is for the 
 jury or for the judge to decide that point. It was laid 
 down by Sir M. Foster, that whether the mains animus or 
 malice existed was a matter of inference to be determined 
 by the judge, though whether the facts existed out of 
 which the inference is derived is matter for the jury to 
 decide.^ And the court, and not the jury, is the judge 
 whether the blood has cooled, and the violent transport of 
 passion has abated.^ Yet in all mixed questions of law 
 and fact it is well to leave them to the decision of juries.* 
 And malice, and especially what is termed malice in law, 
 is peculiarly within the province of juries. The degree of 
 probability that death will ensue from a particular act, and 
 the intention of the agent, are inferences to be drawn from 
 each peculiar combination of facts, and must vary from 
 case to case. And so, whether in a doubtful case the mur- 
 derous act was done from malice or from some provocation 
 CO- existing.^ Moreover such inferences are to be deduced 
 
 I Keil. 108 ; Fost. 260 ; 1 Hale, 473. "- Oneby's Case, 2 L. 
 
 fiaym. 1485 ; 17 St. Tr. 50. ^ Ibid. ; R. v Fisher, 8 C. & P. 185. 
 
 '■ Macdoiiald v Rooke, 6 I5ing. N. C. 217. ^ r ^ Hayvvard, 6 C. & 
 !'. 157.
 
 en, IV.] MURDER BY SEVERAL PERSONS. 345 
 
 from ordinary transactions and from the conduct and 
 language of persons of various classes. All these are 
 ])eculiarly matters for the consideration of a jury and not 
 of the judge. In a case of shooting a man who was out 
 at night dressed in white as a ghost, and who terrified the 
 neighbourhood, three judges held that this was murder; 
 because, though the ghost committed a misdemeanour, it 
 was no reason why he should be shot ; and they told the 
 jury, if they believed the evidence, they must either find 
 the defendant guilty of murder, or acquit him. But the 
 jury insisted on finding a verdict of manslaughter. In that 
 case the court refused to receive the verdict.^ 
 
 Murder hy one of several acting illegally together. — The 
 unlawful acts, in prosecuting which murder is committed, 
 often consist of some conspiracy in which several persons 
 combine. The rule is, that, where several persons combine 
 to commit some breach of the peace in a tumultuous way, 
 or some felonious act, and in carrying out the common 
 design one kills a third person, all are equally guilty of 
 murder, though some may have no active part in the par- 
 ticular act.^ Thus where two persons, after being refused 
 a supply of beer at a prohibited hour, broke into the 
 public-house, demanding to be supplied, and fought with 
 the publican, one of them stabbing him with a sharp 
 instrument, it was held that both were guilty of murder.^ 
 And where Lord Dacre agreed with several persons 
 to hunt in another's park for deer, and to kill all who 
 might resist, one of the party having killed the keeper, 
 all were held guilty of the murder, though Lord Dacre 
 at the moment was a quarter of a mile distant, and 
 knew nothing of the individual blow.^ So where several 
 were engaged in stealing ; ^ in beating another ; '^ and in 
 smuggling.'' 
 
 The reason why all are deemed guilty in such cases is, 
 that the presence of accomplices gives encouragement, 
 support, and protection to the person actually committing 
 it.* And indeed in Anglo-Saxon times the barbarous 
 
 1 1 Rnss. Cr. 546. 2 i Hale, 439 ; 1 Hawk. P. C. c. 31, § 51 ; 
 
 4 Bl. Com. 200. » R. v WiUoughby, East, P. C. 288. " Dacre's 
 Case, Mo. 86 ; Palm. 35. » Yosi. 258 ; R. v Collison, 4 C. & P. 
 
 565 ; R. V Howell, 9 C. & P. 450. « Errinirton's Case, 2 Lew. 
 
 217. 7 Plummer's Case, Kel. 109. « 18 St. Tr. 1106
 
 346 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 notion was acted on, that any one present at a death was 
 a particeps criminis} 
 
 Not only must the act be done in pursuance of the 
 common design, but it must be done while the parties are 
 all acting at tlie time in carrying it out, for if there has 
 been an interval and new confederations, the bond between 
 the parties is thereby relaxed.^ One distinction is whether 
 the murder naturally flowed out of the prosecution of the 
 common purpose, as it did, where several persons went 
 to seize goods illegally by force, and one of them threw 
 a stone at a woman and killed her ; ^ and where several 
 went to poach together and one killed the keeper;'^ 
 and where several persons were pursued on a hue and 
 cry, and one turned and slew his pursuer;^ and where 
 several conspired to rob a man, and one of them killed 
 the victim.^ 
 
 In estimating the joint guilt of several persons thus 
 engaged in a common illegal design, care must always be 
 taken to distinguish whether the murderous act was com- 
 mitted in furtherance of such design, for otherwise the guilt 
 of the murder will fall on the individual whose hand 
 effected it ; and those associated with him, though in some 
 cases chargeable with manslaughter, will not be guilty of 
 murder.'' Thus where two were beating one, and a stranger 
 interfered, whereupon one of the assailants stabbed the 
 stranger, this was held to be murder only in the one who 
 stabbed, because the stabbing of a stranger was a collateral 
 matter not arising in furtherance of the assault.^ And in 
 reference to such interferences, the stranger must take care 
 to use no more violence than is necessary to prevent the 
 continuance of the fi<>ht.^ 
 
 Parties implicated in murder. — As regards the parties 
 to a murder there are, in this as well as other felonies, 
 
 1 Leg. Inae, c. 33 ; Leg. Alf., § 26. 2 c^se of Drayton Bassett, 
 1 Hale, P. C. 440 ; East, P. 0. 300. 3 r. „ ManseU, Dyer, 128 ; 
 
 R. V Hodgson, 1 Leach, 6. 
 
 4 R. V Edmeads, 3 C. & P. 390 ; R. v Whithorne, 3 C. & P. 394 ; 
 R. V Warner, Ry. & M. 380, 5 0. & P. 525 ; R. v Hawkins, 3 C. «& ' 
 P. 392. 5 R. V Jackson, 7 Cox, C. C. 357 ; R. v Howell, 9 C. & P. 
 437, 6 R. V Price, 8 Cox, C. C. 96. ^ B.. v Franz, 2 F. & F. 
 
 580; R. V Plnnirner, 12 Mod. 627, Kel. 109 ; R. v Salusbury, Plowd. 
 100 ; R. V Bortliwick, 1 Doug). 207. « 1 Hawk. P. C. c. 31, § 52. 
 y R. V Bourne, 5 C. & P. 120.
 
 CH. IV.] SEVEEAL IMPLICATED IN MURDER. 347 
 
 degrees of guilt according to the part taken by the several 
 actors. The person who, by his own hand or immediate 
 act, kills or poisons another is the principal. Others may 
 be accessories or aiders and abettors. The mere presence 
 of a person at the commisson of the crime of murder is 
 not the test of being an aider in the crime. For a person 
 may look on and yet not be guilty, either as a principal or 
 as an accessory ; though the least that one ought to do, 
 if present under such circumstances, is to interfere and 
 prevent whatever it is reasonably safe to do, consistently 
 with one's own self-preservation.^ And, for a like reason, 
 he who holds the stakes, while two persons fight but not 
 in his presence, cannot on that account alone be construed 
 to be an accessory before the fact.^ 
 
 In the case of Lord Mohun, the question was discussed 
 how far a friend, who accompanies A to meet B, and who 
 knows A is at enmity with B, will be implicated in any 
 guilt arising out of A attacking and killing B. The judges 
 held that the mere knowledge by the friend of A's 
 animosity and the mere accompanying of A to meet B was 
 no crime ; but if the friend knew that A intended to kill 
 B, and A did kill B, then it is murder in the friend also. 
 And hence in such a situation ever)/ thing will turn on 
 whether the friend impliedly by his conduct knew and 
 approved of A's design.^ 
 
 While the mere presence of a person does not constitute 
 one as principal, on the other hand, mere absence is not 
 a test of his not being an accessory.* If one watch at a 
 distance and the other kill, both are alike guilty of murder.^ 
 It is also possible for the one who causes the death to be 
 guilty of manslaughter only, and the abettor to be guilty 
 of murder, according to the malice or intent proved in each 
 individual.^ 
 
 Where there is a principal actor in the murder, and 
 others more or less engaged with him, it is competent to try 
 each separately for his several offence. If a person instigates 
 or counsels a third party himself, or by any intermediate 
 asrent, to commit a murder which is afterwards carried 
 
 1 Fost. C. L. 350 ; 1 Hale, P. C. 439. ^ R. v Taylor, 44 L. J., 
 
 M. C. 65. 3 K ^ Mohun, 12 St. Tr. 1034, 1038. " Fost. C. L. 
 350 ; 1 Hale, P. C, 439. ^ i Hale, P. C. 615 ; Fost. C. L. 350. 
 
 ^ 1 Hale, 446 ; R. v Salusbury, Plowd. 97.
 
 348 OF THE SECURITY OF THE PERSON. [cH. iv. 
 
 out, the former is guilty of being an accessory before the 
 fact to the murder, and his offetice is punishable in the 
 same manner as murder itself^ For though the party 
 counselled ought to know he is not bound to act on such 
 advice, and cannot excuse himself on that account, the 
 adviser is responsible for all that ensues on his advice, if 
 acted on, and even for things done in course of such advice 
 being pursued. ^ The responsibility of the adviser is, how- 
 ever, limited to the main or substantial point, and only to 
 such things as are the direct and immediate consequence 
 of the advice being acted on, and does not include remote 
 and collateral effects. Thus, where A counsels B to 
 poison C, and C gives part of the poison to D ; or if 
 A counsels B to beat C, and B stabs or poisons C, then 
 A will be responsible only for the murder or beating 
 of C, and no further.^ Whereas if A counsel B to 
 poison C, and B stabs or shoots C, A is equally guilty, 
 for it was the death of C that he substantially instigated. 
 Thus in ascertaining whether the murder was in pur- 
 suance of the counsel or instigation, the test is whether 
 the perpetration of the crime as committed was a 
 probable consequence of such counsel. And when the 
 crime committed is the same in substance, though the 
 means used may differ, the person wlio counsels is never- 
 theless guilty, as an accessory before the fact ; thus it is, 
 when the instigation is to poison, and the deed done is 
 to stab or shoot.'* 
 
 Moreover, to solicit and incite a person to commit 
 murder, though none is committed, is itself a misde- 
 
 meanour.^ 
 
 Receiving a felon into ones house. — Wliere a person has 
 had no part in a murder, but merely has after the fact 
 acquired knowledge, that is, reasonably certain knowledge 
 that the murder has been committed, he will be guilty of 
 being an accessory after the fact to such murder, if he 
 harbour or assist or relieve the murderer, or cause his 
 escape.^ An accessory after the fact is liable to imprison- 
 
 1 24 & 25 Vic. c. 94 ; 24 & 25 Vic. c. 100, § (J7. ^2 Hawiv. 
 
 P. C. c. 29, § 18. 3 Ibid. ; R. v Michael. 2 Mood. C. C. 120 ; 
 
 1 Hale, P. C. 431. * 2 Hawk. P. C. c. 29, § 20 ; 4 151. Com. 37. 
 
 ^ R. V Gregory, L. R., 1 C. C. R. 77. « R. v Greenacrc, 8 C. & P. 
 
 35; 2 Hawk. P. C. c. 29, §36.
 
 CH. IV.] HARBOURING A MURDERER. 349 
 
 ment for two years or less, or to penal servitude for life, or 
 for at least five years.^ 
 
 Owing to the absence of malice, which implies delibera- 
 tion, one distinguishing characteristic of manslaughter is, 
 that there can be no accessories before the fact, for as the 
 principal actor is assumed to have himself not intended 
 the death, or at least not premeditated it, he can have no 
 associates. Therefore, though there may be more than one 
 guilty of the principal felony, all such must have been 
 present and taking part together in the criminal act.^ Yet 
 if poison was given to procure abortion, accessories might 
 be distinguished.^ And though there may not be acces- 
 sories before the fact to nianslaugliter, there may be 
 accessories after the fact."* The offence of an accessory 
 after the fact is, however, one seldom prosecuted, partly 
 from the difficulty of evidence, and partly because sympathy 
 and humanity incline most people to treat this as a venial 
 offence. And the court will not allow even a confession 
 of the guilty principal to be treated as evidence against 
 the accessory, who must always be more or less uncertain 
 whether or not the person he harboured has committed 
 the crime. Moreover something more than the bare 
 receiving a felon into one's house is required in order to 
 prove the offence of an accessory after the fact. And the 
 receiving by a wife of her husband, though she has good 
 reason to believe he has committed a felony, is deemed no 
 offence in her, owing to the superior claims of her relation- 
 ship.^ 
 
 Murder excludes the notion of lawful business or conduct. 
 — Though murder is a malicious killing of another, yet, 
 owing to the difficulty in ascertaining whether malice 
 existed and the secrecy and fraud under wliich it is con- 
 cealed, it is well to add that the killing must be such that 
 it cannot be justified either by self-defence or the lawful 
 conduct or business of the killer. This branch of the 
 definition opens up several situations in which the killer 
 is, or affects to be, lawfully doing some business of his 
 own at the time, and if this lawful business or conduct 
 is made plain, it generally excludes and negatives any 
 
 » 24 & 25 Vic. c. 100, § 67 ; 27 & 28 Vic. c. 47. ^ i Hale, 
 
 P. C. 450. 3 R. V. Gay) or, D. & B. 288. ^ R. v Greenacre, 
 
 8 C. & P. 35. 5 Bract b. iii. c. 32, § 9.
 
 350 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 necesssity to search for a malicious motive. What then 
 are those departments of lawful business, and conduct, 
 which lead most frequently to a qualification of the rule that 
 killing is murder ? These embrace several common and 
 familiar classes of circumstances. Nothing can be more 
 lawful than self-defence, yet even that may be carried to 
 excess ; so may the defence of one's relatives and one's 
 property. There are other lawful things in the doing of 
 which a human being may be killed, and the motive or 
 malice of which may be doubtful till the circumstances 
 are scrutinised. Such are the correction of children — 
 the enforcing or resisting of illegal arrests — the resisting 
 and stopping of crime. On the other hand, there may be a 
 killing of human beings in a course of cruel treatment, and 
 apparently also by perjury in certain circumstances. Of 
 these in their order. 
 
 Killing in self-defence. — Self-defence is one of the irre- 
 pressible tendencies of human nature, and no law of 
 civilisation or any code of positive enactments, however 
 perfect, can hope to dispense with it. All the actions, 
 indictments, sureties of the peace, and remedies, that 
 courts of law can entertain and enforce can never supersede 
 that radical law of the human being, which operates with 
 the rapidity of an instinct, and which teaches each one 
 who is attacked without cause to repel force with force, 
 to overcome that force with still greater force — to pro- 
 portion the resistance to the strength of the attack, but 
 at all extremities, even if a deadly weapon is at last the 
 only means of victory, then to attain victory even if the 
 life of the assailant is destroyed in the effort. The reason 
 why self-defence must be recognised in every law is this, 
 that as life or death is often an affair of a moment, there is 
 none but the individual attacked who can bring to bear a 
 sufficiently prompt and effective remedy for the occasion. 
 
 While self-defence is a lawful remedy reserved to all 
 human beings against immediate violence, it must at the 
 same time be used with the caution and consideration for 
 others which become a reflective being. There are certain 
 (qualifications therefore to be used in defining the limits of 
 tliis right. The first is, that the degree of force used in 
 self-defence must not exceed what is reasonably calculated 
 to prevent tlie adversary's success. The second is, that
 
 CH. IV.] KILLING IN SELF-DEFENCE. 351 
 
 - 
 
 while one may gradually advance from a lower to a higher 
 degree of force according to the occasion, yet the highest 
 of all, namely, the killing of the adversary, can only be 
 justified by the immediate apprehension that nothing else 
 will prevent the assailed being himself killed. The law 
 always requires that every man shall respect his neigh- 
 bour's life and safety if consistent with his own ; but if 
 in extremities one of two lives must be sacrificed, then 
 self-preservation is presumed by law to be the natural 
 choice of all, though in a few sublime instances of devo- 
 tion heroes and martyrs have thought little of their own 
 lives in comparison with those of others, or wdth the 
 triumph or vindication of some great and worthy object 
 that is to be attained. The law may be said, however, to 
 l)e incapable of comprehending such self-devotion. It 
 deals only with common humanity, endowed as it is with 
 a sufficiency of selfish instincts. The higher elevations in 
 moral and religious life which the law cannot attain to 
 have other standards of right and wrong. Its views of 
 life are mostly selfish. It does not profess to protect or 
 encourage or even comprehend martyrdom. 
 
 Saving one's self hy flight lefore killing pursuer. — It seems 
 that a kind of artificial rule was attempted to be laid 
 down on this subject by Hale, to the effect that no one 
 would be justified in killing another in self-defence without 
 first runniDg or flying to the wall, or other non ultra, so as 
 to avoid the violence of the assault; and when he felt 
 bound to say how far such flight must be carried. Hale 
 answered, " Suppose it half a mile." But this was carry- 
 ing the niceties of dogmatic rules too far. Who can 
 pretend to judge when a man's extremity is reached, when 
 he has shot his last arrow, and must either kill or be killed? 
 In each supreme moment the party attacked must usually 
 be judged with candour, for a third party can seldom enter 
 into each critical situation and the surrounding difficulties 
 of another, which must be measured in the twinkling of 
 an eye. No rule of half a mile or half an hour can be of 
 the least assistance in guiding a jury to decide, whether 
 the killing in self-defence was a moment too soon. When 
 swords and pistols are called for, as Pratt, G. J,, said, no 
 man can be expected to stand still and be murdered.^ 
 
 ' IG St. Tr. 5-2.
 
 352 OF THE SECURITY OF THE PERSON. [on. iv. 
 
 Lord Hale thinks it right also to qualify his rule with this 
 proviso, that while it is the duty of an attacked person 
 first to fly before killing his assailant, yet this flight must 
 not be a feigned flight, as " when fighting-cocks retire to 
 gain advantage." And he admits that if a man is attacked 
 in his own house, then he is not required to fly, because 
 the protection of his house excuses him. 
 
 One of the emergencies in which the doctrine of self- 
 defence usually comes into play is where there is some 
 sudden brawl, and a person is attacked with suSicient 
 force and malice to justify or excuse him in giving a 
 fatal blow. This is often called chance medley, which 
 means a casual affray or chaud medley (chaud me.lle), when 
 the afl'ray gives rise to heat and passion. This was one 
 of the classes of circumstances under which the killing of 
 another was deemed excusable if, after blows on each 
 side the slayer did all he could to decline, but was forced, 
 in self-defence, to kill his adversary in order to save his 
 own life.^ But if the circumstances do not clearly show, 
 that there was immediate danger to the life of the slayer, 
 then he will be guilty of manslaughter.^ For the very 
 notion of self-defence implies that not only was there no 
 attack in the first instance, but that the occasion was 
 adequate to justify the degree of force that was used to 
 repel force, and that the slaying was avoided in all reason- 
 able ways until the very last.^ And as in cases where man- 
 slaughter is committed in circumstances of provocation, it 
 is not very material who first began a fight, so this is 
 immaterial in questions of slaying in self-defence. The 
 important consideration is, whether, when the one party 
 slew the other, the former had done all he could in the 
 circumstances to avoid this extremity, and was under the 
 immediate apprehension that if he did not do so he would 
 himself be killed.* Yet our ancient law seems to have 
 agreed with the law of the most ancient of communities 
 in being unable to draw fine distinctions, for it classed 
 killing in self-defence with murder, and treated it at least 
 
 • 24 Hen. VIII. c. 5 ; Staund. P. C. 16 ; 3 Inst. 55 ; Kel. 67 ; 
 4 Bl. Com. 184 ; Fost. 275. 2 i^ost. 276 ; 4 Bl. Com. 184. 
 
 ^ R. V Smilli, 8 C. & P. 160 ; R. v Ball, 9 C. & P. 22. * Fost. 277 ; 
 1 Hale, 482 ; 1 East, c. 5, § 63.
 
 r.H. IV.] WOMAN DEFENDING UER HONOUIi. 353 
 
 as primd facie murder, and so requiring some formal 
 pardon.^ 
 
 A woman defending he^- honour. — It is the same doctrine 
 of self-defence, that jusufies a woman in di;fending her 
 honour at all hazards. A woman may kia a man to 
 prevent being ravished, and though Hale said the reason 
 of this was because rape wos felony — a reason wliich would 
 equally apply to all other felonies — a much better reason 
 is this, that the law of civilisation estimates the possession of 
 purity and honour as superior to the life of any man who 
 assails it. It is a question of comparing the intrinsic 
 worth of a valuable possession, the worth of virtue and 
 purity with its negative — the worthlessness of licentious- 
 ness and passion. If the sacrifice of the assailant is 
 necessary to the former, the law supplies no rule by which 
 that sacrifice can be shown to be either criminal or 
 blamable ; and no court would criticise very nicely the 
 reasonableness of drawing the limit of forbearance too 
 soon. 
 
 Killing in defence of vnfe, child, relation. — Not only 
 does the law excuse one who slays another in defence of 
 his own life, but on the same principle it excuses one, who 
 in like manner acts in defence of the life of a wife, 
 husband, or cliild, master or servant, there being suffi- 
 cient identity of interest and feeling to make the act of 
 one the act of the other ; and though the law takes too 
 frequently only a selfish view of human nature, in this 
 instance the generosity arising from close ties of affection 
 or duty is viewed as entering legitimately into the motive 
 of action.^ As regards, however, the relation of master 
 and servant, especially considering the gradual tendency 
 of that relation to become less close, the circumstances 
 would require more need of justification.^ 
 
 Iltisband killing an adulterer. — Whether a husband is 
 justified in killing an adulterer, and under what circum- 
 stances, has attracted the attention of all legislators from 
 the earliest times. It seems to have been always deemed a 
 justifiable act for a husband to kill an adulterer flagrante 
 
 ' The exemption from punishment of a person who .slew another 
 in self-defence or by misfortune was shown by a pardon. — 2 Ed. III., 
 St. North, c. 2. 
 
 2 1 Hale, P. C. 484 ; 4 Bl. Cora. 184. ^ See ante, p. 296. 
 
 VOL. I. A A
 
 354 OF THE SECURITY OF THE PERSON. [cH. iv. 
 
 delicto. The Greeks excused one who slew the debaucher 
 of a wife, mother, or daughter.^ Plato allowed the woman, 
 her father, brother, or son, to kill her ravisher.^ In Rome this 
 was a good excuse also, and there at one time the husband 
 might kill the adulterous wife also ; ^ though at a later 
 period she was only whipped and sent to a convent.* In 
 Tonquin the husband might kdl the wife as well as the 
 adulterer, or if she was tried, she was condemned to be 
 trodden to death by an elephant.^ The punishments for 
 adultery in nearly all ancient, and especially Eastern, coun- 
 tries, have been merciless.^ The old Welsh law was from 
 a like motive most indulgent to the wife of an adulterer ; 
 for she was excused for killing the husband's concubine 
 with her hands, whenever they met.^ This is a subject on 
 which no definite rule can be laid down, though Hale and 
 older writers have done so very broadly. One can easily 
 see that while a natural and uncontrollable resentment 
 may impel a husband in some circumstances to kill the 
 adulterer, there may be many, and perhaps a majority, of 
 cases, where such a justification could not be urged or 
 defended. And nothing but the common sense and experi- 
 ence of juries, assisted by a judge and applied to each 
 individual situation, can adequately solve this point and 
 draw the line between murder and manslaughter.^ 
 
 The provocation of a husband on a view of this offence, 
 flagrante delicto, has been held to negative the malice and 
 reduce the crime to manslaughter, but not to justify the 
 act further.^ And a like view was acted on where a parent 
 slew one detected in a kindred offence with a child -.^^ but 
 mere suspicion of adultery, though well grounded, will 
 not constitute any adequate provocation, and it will be 
 murder, should death be so caused.^^ And, as civilisa- 
 tion advances, and remedies of divorce become improved, 
 
 • Demosth. Aristoc. '■^ De Leg. b. ix. ^ Dion. b. ii. 25 ; 
 
 Suet. Tib. -« Nov. 134, c. 10. ^ 9 pjnk. Voy. 723. « See 
 
 po.s<, CIi. viii. ^ Diiriet. Code, b. ii. c. 8 ; Gwent. C. b. ii, c. 39 ; 
 
 Welsh Laws, b. iv. c. 4. 
 
 « Fost. 296 ; R. v Kelly, 2 C. & K. 814. Holt, C. J., said, indeed, 
 tJiat jealousy was the rage of a man, and adultery was the highest 
 invaHion of property. — 17 St. Tr. 70. 
 
 9 R. V Mawuing, T. Rayiii. 212 ; R. v Maddy, 1 Vent. 158 ; Jones, 
 150. '" R. V Fisher, « (1 & P. 182 ; R. v Royley, Cro. Jac. 296 : 
 
 1 Vent. 159. " R. 1; Kelly, 2 0. & K. 814.
 
 CH. IV.] KILLING IN DEFENCE OF PROPERTY. 355 
 
 there is less justification than ever of this leniency in the 
 law towards such an outbreak of ungovernable fury in the 
 circumstances described. 
 
 Killing in defence of exclusive possession of property. — 
 Not only may a man lawfully slay another in defence of 
 his own life or that of a near relative, but he may often 
 do so in the course of the defence of his own exclusive 
 possession of property, if such an extremity is necessary 
 for the protection of his own life also, though perhaps in 
 a secondary sense. The foundation of this right is the 
 rule, that he, who is entitled by law to the possession, and 
 is actually in possession, can turn off all trespassers or 
 strangers who come on the property without permission. 
 If they refuse to quit on request, no matter whether the 
 request be courteous or uncourteous, be generous or harsh, 
 with or without just cause, the trespasser may be pushed 
 off by main force ; and any resistance becomes illegal, and 
 the trespasser is in the wrong in delaying from the 
 moment that the request is made known. If this were not 
 the law, every man's house would cease to be his castle, 
 that privacy which is the main object of property would 
 be destroyed, and a sense of insecurity would be introduced 
 which would sap the springs of industry and order. Yet 
 there ought to be some limit to the mere right of defend- 
 ing property at all hazards. 
 
 This subject has exercised the skill and care of legislators 
 in ancient times. The Jewish law held it lawful to slay a 
 thief found in the niglit.^ The law of the Twelve Tables 
 allowed it also, but required the slayer to call aloud on 
 the occasion.^ Yet both laws seemed to agree, that the 
 thief was only to be slain in the day-time, if he defended 
 himself with a weapon ; and the Eoman law required also 
 the slayer in that case to call aloud.^ The laws of Solon 
 and Plato both jjcrmitted an owner to slay a thief in the 
 night-time, but in the day-time only if there was accom- 
 panying violence, as the law could sufficiently redress any 
 wrong without requiring this extreme penalty to be in- 
 flicted.* This notion of calling aloud was intended to be 
 a warning ; and in Anglo-Saxon times, if a man deviated 
 
 ' Exod. xxii. 2. 2 Dig. jx. 2, 4 ; Macrob. Sat. b. i, c. 4. 
 
 3 Exod. xxii. 3 ; Dig. ix. 2, 3. ■* Demostb. adv. Timocrat. : 
 
 Plato, Leg. b. ix ; Died, Sic. 
 
 A. A 2
 
 356 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 from the highway, he was bound to sound a horn, other- 
 wise he mio'ht be treated as a robber.^ Yet it seems to 
 have been considered doubtful, whether our common law 
 held it lawful to kill a thief or murderer.- 
 
 The mode of dealing with trespassers on property has long 
 been tolerably well settled. Though a trespasser will not 
 on request leave one's house or land, and though the force 
 used is insufficient to overcome his resistance, it does not 
 follow, that the owner or rightful possessor can put such 
 trespasser to death. In order to justify this, the object 
 and manner of the trespasser's invasion must be such as to 
 lead to the immediate apprehension, that the owner will 
 himself be killed, or ousted of his possession, and prevented 
 from using his property if he do not despatch the adversary. 
 If a man's house is broken into at night, the worst in- 
 tentions may fairly be imputed to the burglar or house- 
 breaker. On the other hand, if a man trespass in daylight, 
 wdthout permission, or even against permission, and with 
 or without any frivolous excuse, it would be altogether 
 illegal in the owner to shoot or even to assault him with 
 violence. If there is no show of violence on the part of 
 the intruder, if there is nothing beyond a mere intention 
 to annoy, the proper and only safe remedy is that which 
 the law affords by an action of trespass in a court of law. 
 Between these extremes, however, a great variety of cir- 
 cumstances exists, and it will be chiefly owing to the 
 conduct of the intruder, and the intention to eject the 
 owner, or rob or assault hira, whether the extremity 
 resorted to by the owner can be justified.^ 
 
 The law is extremely lenient in viewing the resentment 
 of those who seek to preserve inviolate the security of their 
 own homes, or to keep possession of their own property, 
 real or personal.^ xVnd if a trespasser break into a house, 
 even in the day-time, with a felonious intent, it is said 
 he may be killed without blame.^ Yet all these extreme 
 acts ought to be carefully examined to see how far the 
 circumstances reasonably led up to them. A statute of 
 Henry VIII., indeed, expressly exempted the person from 
 
 ' Anc. Laws, K. With. 2 Barringt. Stcat. 111. » Cliild's 
 
 Case, 2 Lew. 214 ; Hinchcliffe's Case, 1 Lew. 161. "3 Ed. IIL 
 
 Coroii. 35 ; Croinpt. 27 h. ; 1 Hale, 473, 48G ; 1 East, P. C. c. 5, 
 5 56. •' 1 Hale, 488.
 
 cu. IV.] MURDER DURING ARREST. 357 
 
 punishment who slew a burglar or thief entering his 
 mansion.^ And this was held to exempt a lodger or so- 
 journer likewise.^ Such excuse ought to be sustained when 
 the commission of felony involves violence, or imminent 
 danger to the person.^ Whereas, if the object is merely to 
 do something not implying violence, as to pick a pocket;* 
 or to beat one merely to make him desist ; or to carry off 
 goods, or steal fowls ; such killing would be manslaughter, 
 as being in excess of the occasion.^ Much will, therefore, 
 depend on the reasonableness of the conduct of the person 
 killing, and the justness and fairness of the inferences 
 drawn by him as to the intentions of the trespasser, and of 
 the moderation of the force used to overcome the assailant 
 in each critical situation.^ 
 
 Killing to prevent crime. — Not only may a person in self- 
 defence lawfully kill an assailant, l)ut, if he sees a felony 
 about to be 'committed, he may interfere and prevent the 
 crime ; and if in repelling force with greater force, he kill 
 the perpetrator, this has been called justifiable homicide.'' 
 This is said to be so, for example, where the perpetrator 
 is engaged in a burglary or arson. But if the occasion for 
 preventing the crime has past, then the extreme measure 
 of slaying such party can no longer be justified ; and if 
 resistance has occurred, and the party is killed, this 
 can seldom be less than manslaughter.^ So in the case 
 of mutual combats or sudden affrays, a bystander should 
 act with caution, and should not interfere without giving 
 notice, nor interfere by taking either side : but if after such 
 notice he do interfere against both, and use force, and one 
 of the persons fighting is killed by him in self-defence, 
 this has been said to be justifiable homicide.^ 
 
 Murder in arrests hy officers of law. — Murder is fre- 
 quently committed in the course of an arrest of a person, 
 which is made by a constable or bailiff under authority of 
 legal process. The disputes and angry feeling thereby 
 excited often lead from small beginnings to deadly 
 
 1 24 Hen. VIII c. 5. « Cro. Car. 544. 3 r ^ Bull, 9 C. & P. 
 22. 4 1 Hale, 488. » Ibid. ; 1 Hawk, c 28, § 23 ; Kel. 132 : 
 
 1 East, P. C. c. 5, § 44. 6 Level's Case, Cro. Car. 538. 
 
 7 1 Hale, 481, 484 ; Fost. 274 ; Handcock v Baker, 2 B. & P. 265. 
 s 1 East, c. 5, § GO; 1 Hale, 485. ^ 1 Hale, 484 : 1 East, P. (!. 
 
 c. 5, § 58.
 
 358 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 encounters. And these encounters generally arise out of 
 some irregularity in the supposed authority of the person 
 arresting. It is a rule applicable to all ministerial officers, 
 and especially constables, that if they are at the time 
 in the lawful exercise of their duty arresting felons or 
 breakers of the peace, and are attacked and killed, it is 
 murder in the person killing ; for it is deemed a wanton 
 and deliberate attempt to defy the law and make the 
 officer the victim of that attempt. The malice of the act 
 is therefore easily presumed from the circumstances. In 
 such cases there may be some nicety in ascertaining, 
 whether the constable was at the time acting in the course 
 of his duty, and this will often be a question, preliminary 
 to determining the denomination of the crime committed.^ 
 As it is absolutely necessary, that, while law exists, there 
 shall be officers of the law to arrest its transgressors, all 
 should acquiesce in the regular discharge of such a duty ; 
 and it is idle to say that there can be any just cause of 
 provocation to any weU-disposed citizen by an officer of 
 the law executing on him as well as others the behests of 
 the law, whatever they may be, and however disagreeable 
 or unfortunate. But it is obvious the main troubles arise 
 out of the difficulty in the party arrested being satisfied 
 that up to the point of arrest this course of the law has 
 been fairly and regularly followed without fear, favour, or 
 partiality. A constable of one London parish arrested a 
 woman in another parish at Covent Garden, which he had 
 no authority to do. Certain bystanders, utter strangers to 
 the woman, attempted to rescue her, and the constable's 
 assistant was killed by them. Whether this was murder 
 in these bystanders became a subject of anxious deliberation 
 to twelve judges ; and seven against live held that it was 
 not murder, for there was sufficient provocation to reduce 
 the offence to manslaughter. Lord Holt, the leader of the 
 majority of these judges, carried away by a fine enthusiasm, 
 thus gave out his reasons : "If one be imprisoned upon 
 unlawful authority, it is a sufficient provocation to all 
 people out of compassion, much more when it is done 
 under colour of justice, and when the liberty of the subject 
 is invaded. It is a provocation to all the subjects of 
 
 1 R. V Hems, 7 C. & P. 312 ; R. v Hagan, 8 C. & P. 1G7; R. v 
 Porter, 9 C. &. P. 778.
 
 OH. IV.] MUKDER DURING ARREST. 359 
 
 England ; a man ought to be concerned for Magna Charta 
 and the laws ; and if any officer against law imprison a 
 man, he is an offender against Magna Charta." Many- 
 years later another judge, Sir M. Foster, deeming this 
 unsound law, with equally fine irony observed: "The 
 prisoners saw a woman, a perfect stranger to them, led to 
 the Eound House .under a charge of a criminal nature. 
 This upon evidence at the Old Bailey a month or two 
 afterwards cometh out to be illegal imprisonment ; a 
 violation of Magna Charta ! And these ruffians are pre- 
 sumed to have been seized all on a sudden with a strong 
 fit of zeal for Magna Charta, and in this frenzy to have 
 drawn on the constable and stabbed his assistant." ^ 
 
 Where bystanders assist an officer in executing the law 
 and keeping the peace, they are in the same position in 
 this respect as the constable, and are deemed entitled to 
 the same protection while rendering this assistance.^ But 
 bystanders, who have not seen any felony or breach of the 
 peace committed, or any warrant authorising such officer, 
 must take the risk on themselves of assisting, if it turn out 
 that the arrest is unlawfully made f and they sliould always 
 inform the party to be arrested of the object of their 
 interference.* Thus if a constable or bailiff has lawfully 
 arrested his prisoner, he is entitled to repel force with 
 force, and keep possession, but he is not justified in coming 
 to extremities and killing the prisoner, even though the 
 latter resist or run away, for he must not use means wholly 
 disproportioned to the end in view.^ 
 
 Oeneral requirements as to valid arrest. — The circum- 
 stances under which an arrest can be legally made belong 
 more properly to the subject of Arrest, which is treated 
 hereafter.*^ It is enough here to say, that while a con- 
 stable or any other person requires no warrant in some 
 circumstances to authorise him to arrest for certain crimes, 
 in all other cases the party arresting must have the express 
 authority of a statute, or be expressly authorised by some 
 warrant of a court or magistrate to make such arrest. In 
 the case of authority given by statute, the party arrested is 
 
 ' Fost. Cr. C. 316. 2 Fost. C. L. 309 ; 1 Hale, P. C. 462. 
 
 » 1 Hale, P. C. 490 ; Fost. 318. ^ Foster, 272 ; 1 Hawk. P. C. 
 
 c. 31, §§ 49, 50. » 1 East, P. C. c. 5, § 03 ; 1 Hale, P. C. 481. 
 
 " See 'post, Chap. vii.
 
 360 OF THE SECURITY OF THE PERSON. [cu. iv. 
 
 as miicli bound to know of that authority as the party 
 arresting, and the latter need not expressly refer to it. 
 In the cases where a warrant of a court or judge is 
 required in order to justify an arrest, the person arresting 
 is bound not only to have obtained such warrant before- 
 hand, but he must liave such warrant in his possession 
 at the time of the arrest. The reason is, that no one is 
 bound to surrender his liberty at the call of another with- 
 out knowing what authority that other has for such 
 demand, and is entitled to demand a sight of the warrant 
 in order to judge of its sufficiency and the truth of it. 
 And where no warrant is needed, he is nevertheless equally 
 entitled to be informed on what ground or for what offence 
 he is arrested, subject to these essential requirements being 
 fulfilled ; beyond this the party arrested has no further 
 right to resist, and if he do so, he and others may conclude 
 that he is in the wrong. Lord Hale says, that, if a man 
 for debt or trespass be about to be arrested, and fly, and the 
 bailiff kills him, it will be murder. But Foster qualifies 
 this by adding, that if the officer in the heat of pursuit trip 
 up his heels, or give him a stroke with an ordinary 
 cudgel or other weapon not likely to kill, and death ensue, 
 then it might only be manslaughter. Great caution is 
 obviously required in the officer, so that the party's life 
 shall not be unnecessarily sacrificed. It may be doubt- 
 ful in any case whether the killing in furtherance of 
 arrest is justifiable.^ If, for example, a party apprehended 
 flee or escape and be pursued, the officer is never entitled 
 tu kill him, though it has been said that this may be 
 lawfully done where such party has committed a felony 
 or given a dangerous wound.^ And in case of riots or 
 unlawful assemblies, even irrespective of the riot act, if 
 these cannot be suppressed, except by killing one or more 
 of the rioters, a constable or peace-officer, it is said, may 
 be justified in such an act, though it will be difficult to 
 prove tliis justification, uidess the circumstances are ver}^ 
 strong.^ But a private person ought not of his own 
 authority to take this step, and if it turn out that the party 
 
 ' See ante, p. 309. 
 
 « Hale, 489 ; 1 Hawk. c. 28, § 11 ; Fost. 271 ; 4 Bl. Com. 179. 
 
 » 1 Hale, P. C. 63, 494 ; 1 East, c, 5, § 71.
 
 CH. IV.] KILLING CHILDREN BY CRUELTY. 361 
 
 killed is innocent, though the officer might be justified, the 
 private person will not be so.^ 
 
 This doctrine, that a constable or bailiff may kill the 
 party pursued in certain emergencies, has been too lightly 
 dealt with, for it is in substance allowing an officer to take 
 away life without trial or legal sentence, and where pos- 
 sibly the exigency has been entirely created by his own 
 negligence or incompetence ; or it may be, that the object 
 in view is contemptible in comparison with human life, 
 such as the imprisoning of a man for a debt, or some petty 
 offence. It is admitted that if a gaoler use cruelty to a 
 prisoner, causing or accelerating the death of the latter, 
 this will be deemed murder.^ 
 
 Killing in correcting children. — Many of the cases of 
 manslaughter arise out of the disproportion between the 
 blow and the effect intended to he produced ; and, if what 
 was meant only to punish the body in a slight degree 
 causes death, the fault of this does not fall on the person 
 who misuses his strength or exceeds his aim, whenever it 
 can be attributed to those inevitable accidents which 
 happen amid the great variety of circumstances in life, 
 but which bring no punishment upon any, simply because 
 no want of care can be traced to any individual. If how- 
 ever, parents and masters of schools, though impliedly 
 at common law having authority to administer moderate 
 correction to children, should overstep the limit of mode- 
 ration either by using too great violence, or moderate 
 violence for too great length of time, or using a danger- 
 ous weapon ; and if death ensue mainly by reason of the 
 correction, it will be murder.^ Though when correction is 
 administered, and the degree and force are not out of pro- 
 portion to the occasion of offence, manslaughter only will 
 be deemed to be committed,^ as in beating a boy found 
 stealing wood f in ducking a pickpocket ;*' in a father 
 beating a boy who beat his son.'^ 
 
 Killiiig in course of cruel conduct. — In like manner, 
 murder will be committed in case of death by various 
 
 > 2 Hale, 84 ; 1 Hale, 489 ; 1 East c. 5, § 68. 2 Fost. 322 ; R. v 
 Huggins, 2 Str. 882. 3 1 Hawk. P. C. c. 29, § 5 ; 1 Hale, P. C. 
 
 453, 473. " Fost. 291. ^ Holloway's Case, Cro. Car. 131. 
 
 « Fray's Case, 1 Hawk. P. C. c. 31, § 38. ^ Rowley's Case, 12 
 
 Rep. 87 ; 1 Hale, 453 ; Fost. 294.
 
 362 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 kinds of cruel treatment, as by exposing a sick or helpless 
 person, under one's charge, to excessive cold or starvation ; ^ 
 by leaving an infant in the fields so that a kite or pig kills 
 it;2 by neglecting to give food to a helpless child ;^ by 
 putting a prisoner into an unwholesome place, where a 
 distemper is caught ;* by striking a child or apprentice 
 with a deadly weapon ;-^ by beating and tying a child to 
 a horse's tail ;^ by striking a servant with a sword for 
 refusing to deliver up a key ; '^ by cruelly ill-using a person so 
 as to bring on some fatal disease.^ And yet because the 
 facts failed to show cogent evidence of malice, the offence 
 has been reduced to manslaughter, as by merely neglect- 
 ing a sick person ;^ or by correcting a child so as to bring 
 on consumption.^^ A gaoler is by law bound to supply 
 his prisoner with food,^^ and a; master usually to supply 
 food to an apprenticed^ But it is no implied terra of the 
 contract to provide a servant with medicine or medical 
 advice in case of sickness, though it may be so to provide 
 an apprenticed^ And a master, after treating an apprentice 
 as an apprentice in point of fact, cannot evade liability 
 by proving that the deed of indenture was void.^* And 
 a servant, supplied with food to give to a young child, 
 but who maliciously refuses to give such food, is guilty of 
 murder.^^ Where, indeed, a parent has no food to give to a 
 young child, it is his or her duty to apply to the parish or 
 union for relief; and if for want of this application the 
 child die, the parent is guilty of at least manslaughter.^'' 
 
 In all such cases as these, of causing death by starvation 
 or cruelty to prisoners, children, and helpless persons, it is 
 essential, that there should be at the time a legal duty in 
 the person charged to supply food, or help, or care to the 
 person w^hose death is caused. Thus a mother is not 
 
 1 East, P. C. 225 ; R. v Walters, Car. & M. 164. ^ 1 East, P. C. 
 
 c. 5, § 13. '^ R. V Walters, Car. & M. 164 ; R. v Squire, 1 Russ. 
 
 Cr. 678. " R. v Huggins, 9 St. Tr. 218. « R. v Grey, Kel. 64 ; 
 
 1 Hale, P. C. 474. « R. v Halloway, Cro. Car. 131. ^ R. ^ 
 
 Keite, L. Raym. 138. 8 r_ ^, Self, Leach, 137. ^ R. v Marriott, 
 8 C. & P. 425. 10 R. V Cheeseman, 7 C. & P. 455. " R. v 
 
 Godwin, 1 Russ. Cr. 563. ''•^ R. v Smith, 8 C. & P. 153 
 
 R. V Davies, 1 Russ. Cr. 679. ''i Sellen v Norman, 4 C. & P. 80 
 
 R. V Smith, 8 C. & P. 135. '' R. v Davies, Russ. Cr. 679 
 
 R. V (Jrumpton, Car. & M. 597. '-^ R. v Hook, 4 Cox, C. C. 455 
 
 "i R. V Mabbett, 5 Cox, C. C. 338.
 
 cH. IV.] KILLING BY DUELLING. 3G3 
 
 indictable for letting her infant starve to death, if the 
 father had not supplied her with food to give to the child,^ 
 though the mother would be liable if the death was caused 
 by her sole personal neglect, as by refusing to suckle the 
 child.^ And the mere neglect to provide means of pre- 
 serving a child about to be born is not per se evidence 
 of criminal neglect in the mother.^ And where a wife is 
 separated by agreement, and has an allowance, but comes 
 for shelter and relief to the husband under peculiar cir- 
 cumstances of present destitution, and the husband refuses, 
 and thereby causes her death, there seems no ground for 
 charging him with manslaughter, as there was no duty at 
 the time incumbent on him.* And where a female is able 
 to take care of herself, and is in want of medical assistance 
 or a midwife, the person, in whose house such person lives, 
 whether a parent or not, is not criminally liable for 
 neglecting to procure such assistance.^ 
 
 Fighting and duelling is not laivful. — The practice of 
 duelling was for ages and even up to a recent period 
 countenanced by many citizens as a mode of supplying for 
 wounded honour and personal affronts a solution and kind 
 of satisfaction which the law could not give. It was 
 deemed indeed almost degrading to resort to legal tribunals 
 in such cases, though it is the sole object ot the law to 
 substitute for every kind of personal vengeance the more 
 equitable judgment of an impartial judge. Yet this dis- 
 position to take the law into one's own hands was a cause 
 of trouble to legislatures and governments for centuries.® 
 In turbulent ages fighting was the chief business of life.''' 
 
 1 R. V Squire, 1 Russ. Cr. 190 ; R. v Bubb, 4 Cox, C. C. 455 ; R. v 
 Saunders, 7 C. & P. 277. 2 k_ ^ Edwards, 8 C. & P. 611. 
 
 y R. V Kni£^-ht9, 2 F. & F. 46. * ^v Plumuier, 1 C. & K. 600. 
 
 "^ R. V Shepherd, 1 L. & C. 147. 
 
 *• The Roman gladiators were sometimes condemned as a punish- 
 ment, while volunteers were also allowed as a pleasure, to fight with 
 each other or wild beasts. These exhibitions were treated as public 
 shows, and were abolished by Constantine. — Cod. xi. tit. 43. And 
 were finally suppressed by Honorius. — Theod. Hist. b. v. c. 20. 
 
 7 In the court of Odin fighting was the amusement ol: his 
 courtiers all the morning, while drinking in Walhalla was the 
 amusement of the evening. A law^ of Gundebald, the Burgundian, 
 in 501, enacted that, as a remedy against obstinacy and avarice, all 
 controversies shall be decided by the sword.
 
 364 OF THE SECURITY OF THE PERSON. [CH. iv. 
 
 Some authors have ventured to defend duelling on the 
 ground that it teaches men to resent injuries, and so 
 polishes manners.^ But it was more acutely pointed out, 
 that under this practice a man was dishonoured by not 
 resenting an affront, and utterly ruined by resenting it.^ 
 Most legislatures found duelling becoming an intolerable 
 scandal, and interfered one by one to suppress it.^ James 
 I. first seriously attempted to put it down> Bacon 
 obtained a decree of the Star Chamber against duellers, 
 and punished them with fine and imprisonment. Duelling, 
 however, revived with the Restoration. In 1713 Queen 
 Anne in a speech said the yjractice required a speedy and 
 effectual remedy. In 1842 it was recommended that 
 instead of such killing being treated as nmrder, nothing 
 but imprisonment should follow, and a compensation to 
 the family of the deceased. The practice, however, seems 
 at last to have become obsolete without legislation.^ 
 
 1 Mandev. F. of Bees, 242. ^ Chesterfield's Letters. 
 
 s It is related that in ancient Scandinavia the duel, which had 
 previously been the regular legal suit, was discredited by the 
 disastrous issue of a contest between two poets, who quarrelled 
 about a lady and were both killed, whereupon the parliament at 
 once abolished that mode of litigation for ever.— Mag. Kon. La^. 
 Bet. In Sweden, in modern times, the survivor, or survivors, were 
 ordered to be imprisoned and kept on bread and water for two 
 years— a kind of punishment which was said to have had a power- 
 ful deterrent effect.— 12 Univ. Mod. Hist. 216. The Council of Trent 
 ordered all Christians who resorted to duelling to be excommunicated. 
 Charles V. prohibited it. And the parliament of France made an 
 edict against it in 1602.— 9 Univ. Mod. Hist. 327. Gustavus II., 
 while he consented to preside, at the same time ordered a gallows 
 to be ready for the victor, and this was said to put down the 
 practice in the army.— /ft. 321. Louis XIV. decreed death and for- 
 feiture of estate to those who fought duels. The Japanese are said 
 to have cured the pains of wounded honour also, without resorting 
 to a court of law, but in a more conclusive manner. The affronted 
 party, instead of taking his chance of victory in an open fight, 
 began by ripping up his own belly, and the antagonist was bound 
 by the laws of honour to follow the example. — 1 Benth. W. 379. 
 
 4 2 Pike on Crime, 141. 
 
 5 None but Bacon could so well condense all that need be said 
 on such a subject : " It is a miserable effect when young nien, full 
 of towardness and hope, such as the poets call Aurorm filii^ sons of 
 the morning, in whom the expectation and comfort of their friends 
 consisteth, shall be cast away and destroyed in such a vain manner. 
 P.nt much more it is to bo de]ilored when so much noble and genteel
 
 GH. IV.] MURDER BY DUELLING. 365 
 
 In the eye of the law a duel under the guise of reveng- 
 ing or defending an affront, was generally treated as 
 nothing but a deliberate attempt to murder an adversary.^ 
 The deliberation is most conspicuous when there is previous 
 notice and concert ; and hence when Lord Morley objected 
 to fighting at the moment of quarrel because of the dis- 
 advantage he would labour under from high shoes, this 
 was held to indicate sufficiently the deliberation which 
 implied malice and sustained the indictment for murder."^ 
 And even if the duel arise out of the heat *of quarrel 
 without an interval for reflection, it may stand on the 
 same footing. The choice of deadly weapons, even in 
 such circumstances, is some evidence of malice. Never- 
 theless, the court has held the crime in several instances 
 to be only manslaughter, when there is something in the 
 circumstances to show that the party killing was acting 
 in self-defence, and neither the aggressor nor the assailed 
 was taking any advantage by weapons.^ A duel or fight 
 is iu almost every point of view deemed illegal, because it 
 is an attempt to supersede the action of a court of 
 justice, and to save the trouble of self-control by adopt- 
 ing a solution which is no solution, but merely trusts partly 
 to'' chance the gratification of a settled revenge. Hence 
 the excuse that the code of honour or the fear of being 
 deemed a coward, or the importunity of the victim to 
 court his fate, is no ground lor mitigating the offence, if 
 death should be the result.* 
 
 Tlie position of seconds in a duel is the same as that of 
 the principals, and they are equally guilty of murder, for 
 they deliberately assist and promote it by their conduct. 
 At first it was doubted whether they committed more than 
 
 blood should be spilt on such follies, as if it were adventured in the 
 field in service of the kiiii; and realm, were able to make the fortune 
 of a day and to change tlie fortune of a kingdom. So we see what 
 a desperate evil this is : it troubleth peace : it disfurnisheth war : it 
 bringeth calamity upon private men, peril upon the state, and con- 
 tempt upon tlic law."— Ca-se of Duels, 2 St. Tr. 103(5. 
 
 1 R. V Cuddv, 1 C. & K. 210 ; R. v Taverner, 1 Ro. Rep. 360 ; 
 Kel. 28 ; 3 Bufstr. 171 ; R. v Young, 8 C. & P. 645. ^ j{_ ^ 
 
 Bromwich, 1 Lev. 180 ; R. -y L. Morley, 1 Sid. 277 ; 2 L. Raym. 
 1496. 3 1 East, P. C. c. 5, §25 : R. v Oneby, 2 Str. 766 ; 
 
 2 L. Raym. 1485 ; R. v Kessal, 1 C. & P. 437. " R. v Rice, 
 
 i East, 581.
 
 366 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 a misdemeanour ; but it was settled, so far back as the 
 time of Lord Hale, that they incur the guilt of mur- 
 derers.^ Thus the second of the party killed may find 
 himself in the anomalous situation of being indicted for 
 the murder of the very friend, whose quarrel he espoused.- 
 Not only are seconds in a duel liable to be indicted 
 for murder, but all other persons who take a part in it 
 by attending, are in the same position, though in order 
 to establish the criminality, something of more active 
 jjarticipation must be proved than merely looking on 
 without interference.^ It is true that in endeavouring to 
 establish that complicity and deliberation against a 
 second, which will involve him in the crime of murder, 
 the circumstances must be looked at, in order to ascer- 
 tain whether the second was only casually present, and 
 had no share in the transaction. And it follows from 
 the above state of the law, that if the principals be tried, 
 the seconds may, according to the usual rule which 
 protects witnesses against giving evidence tending to 
 criminate themselves, refuse to give evidence, on the 
 ground that their answer will tend to expose them to an 
 indictment. This, however, being merely a personal pri- 
 vilege, may be waived by the second, and if he consent 
 to be sworn, he cannot then refuse to answer.* 
 
 Killing hy sentence of the law. — Homicide is necessarily 
 justified, when the sentence of the law enjoins the death 
 of a malefactor ; or rather it is not a case of homicide 
 at all in any legal sense. So long as society assumes 
 the right to kill one of its members, who has violated its 
 laws, and so long as capital punishments are maintained, 
 it is absolutely necessary that some one should be the 
 executioner, and that his act in putting to death the 
 criminal should be beyond question. But even this act 
 must be done with the most rigorous conformity to the 
 legal warrant or authority for so extreme a measure. The 
 first thing, therefore, to justify the executioner, is that 
 there shall be a legal warrant or sentence authorising the 
 execution. And the mode of killing the criminal, as 
 prescribed by that sentence, must be literally complied 
 
 1 1 Hale, P. C. 443 ; E. v Young, 8 C. & P. 644. » R. v Cuddy, 
 1 C. & K. 210. 3 R. V Young, 8 C. & P. 644 ^ Ibid.
 
 CH. IV.] MEANS USED FOR MURDERING. 367 
 
 with, otherwise the officer will be guilty of murder.^ If 
 the sheriff vary from the judgment ; as, where the judg- 
 ment is, that the prisoner be hanged, and he beheads the 
 party, this is deemed murder. Yet Foster justifies some de- 
 viation on the part of the sheriff, and says the common law 
 allows the crown to direct beheading instead of hanging 
 in some special cases; and on this ground, he said, the 
 sheriff was justified in suffering a traitor to hang till he 
 was dead without disembowelling, and a woman to be 
 stifled instead of being burnt alive. And the House of 
 Commons, when debating whether the traitor Stafford 
 should be beheaded only, without disembowelling, con- 
 sented to this being done by the sheriff. When Colonel 
 Morley, in 1745, after being hanged six minutes, was cut 
 down, and was still found alive, the executioner, after 
 living in vain several blows on the chest, at last cut his 
 throat.2 g^^t in Walcot's case, under Charles II., a writ 
 of error was brought and attainder reversed, because the 
 record stated, not that his entrails should be burnt while 
 he was alive, as it should have done, but merely that they 
 should be drawn out of the body.^ 
 
 In some countries ancient and modern the practice is 
 to make a condemned prisoner execute himself. The 
 Athenians thought it proper that the criminal should 
 execute himself. And it is said that Witold, prince of 
 Lituania made a law, that criminals condemned to death 
 should execute the sentence on themselves, for a third 
 person would be guilty of homicide.^ 
 
 The means used for murdering. — As the means of mur- 
 dering another seem to be infinite, it at first sight requires 
 explanation why it is said that the means used in murder 
 must be some external or visible means, and why it is not 
 the less murder, if the death of another is brought about 
 anyhow, provided cause and effect be clearly traceable. 
 But it is partly due to the infirmity of the senses and 
 
 • 1 Hale, 433,454,466, 501 ; 2 Hale, 411. 2 Amos, Ruins, 125. 
 3 Walcot's Case, 1 Salk. 632._ 
 
 ■* Cromer, De Reb. Pol. xvi. See further as to this, post, Chap. viii. 
 Punishment. It was said that an Athenian executioner, having 
 given his victim sufficient hemlock to cause death, though in fact it 
 (lid not take effect, refused to provide more till he was paid, and 
 this was so in the case of Phocion. — Plut. Fhoc.
 
 3fi8 OF THE SECURITY OF THE PERSON. [CH. iv. 
 
 human evidence, that the law can only deal with coarse 
 visible and tangible facts, and will refuse to inquire into 
 any secret and circuitous modes of compassing another's 
 death, especially if part of the means involves inquiries 
 into the working of the mind, which at most are mysterious 
 and unsusceptible of strict rules. Hence it is said there can 
 be no murder except the means of killing be some external 
 means, such as a stroke, or poison, or exposure, or imprison- 
 ment. Digging a pit with the intention that A should fall 
 into it and be killed, is the same as killing A with a blow.^ 
 So if the fear of immediate violence cause a person to 
 retreat for escape to dangerous places or courses, and he is 
 killed or drowned, this is the same as if the death had 
 been caused directly by the person threatening violence.^ 
 But there is great difficulty in pushing the doctrine of 
 cause and effect, where the working of the mind is con- 
 cerned ; for the minds of two persons are seldom or never 
 alike, and what is predicable of one might be grossly unjust 
 and inapplicable as to another. Mere words or acts there- 
 fore which operate on the mind or feelings, though the 
 immediate occasion or vehicle of death, and though all the 
 malice and malignity exist, will not be reckoned by the law 
 as equivalent to the crime of murder, for all persons are 
 somewhat harshly presumed by the law to be able to con- 
 trol their feelings within bounds on any mere provocation 
 of words, however false or irritating.=^ Where it is the 
 slanderous lie that kills, it is therefore thought to be no 
 murder at all, because it is said no sagacity can penetrate 
 the connection between the hidden workings of the mind 
 and their effect on the body. 
 
 Killing hij drugs or means of cure. — And for a like 
 reason, namely, the uncertainty in tracing the cause and 
 effect, where a person professing to be skilled in medicine, 
 administers some drug, or performs some operation, so 
 unskilfully as to cause death, this will, in general, in the 
 absence of the grossest recklessness and ignorance, be 
 deemed misadventure, and nothing seems to turn on his 
 
 1 4 Bl. Com. 35. 
 
 2 R V Pitts, Car. & M. 284 ; R. v Evans, 1 Russ. Cr. 676. 
 
 3 1 Hale, P. C. 427 ; 1 East, c. 5, § 13 ; R. ■!; Murton, 3 F.& F. 492. 
 See as to perjury killing i?os«, p. 370.
 
 CH. IV.] KILLING BY INFECTIOUS DISEASE. 369 
 
 not being a qualified practitioner.^ The connection between 
 the death and the negligence, or unskilfulness, is too 
 obscure to warrant a verdict even of manslaughter, for it 
 is idle to expect that these cures can always be successful ; 
 and if tlie medical man honestly believes he is right, and is 
 not grossly ignorant, he is free from blame.^ Britton and 
 Coke contributed to the notion, that, if an unlicensed 
 surgeon occasioned the death of his patient, it was felony ; 
 and Hale, while treating this as a vulgar error, said it 
 tended to make people cautious.^ 
 
 Killing hy Tceeping dangerous animals. — A somewhat 
 circuitous means of murder occurs in the case of letting 
 loose a fierce animal. Wliere a man keeps a fierce animal 
 and lets it loose, so that it kills some one, this will be 
 murder or manslaughter, according to the conduct shown, 
 for there is, in such cases, no difficulty in tracing cause 
 and effect.* To let loose such wild animal in a crowd, or to 
 fire into a crowd, was said by Hale to be an example of 
 malice in law, and the killing to be murder. And Foster 
 said that, whenever an action, unlawful in itself, is done 
 deliberately and with an intention to do mischief or great 
 bodily harm to individuals, or of mischief indiscriminately, 
 fall where it may, and death ensue against and beside the 
 original intention of the party, it will be murder.^ 
 
 Killing hy communicating infectious disease. — It was 
 formerly held, that a person, who goes about knowingly 
 with an infectious disease like the plague, is not guilty of 
 manslaughter at common law, if he thereby cause another's 
 death,^ though Hale admits (or at least doubts the contrary) 
 that if one go about purposely to infect another, then it 
 may be murder ; and, though he do it not purposely, still 
 
 I 1 Hale, 429 ; R. v Loiij^, 4 C. & P. 398 ; R. v Crick, 1 F. & F. 
 
 519 ; Lamphier v Pliipos, 8 C. & P. 475. 2 gee also nnie, p. 82. 
 
 •* Sometimes in proving the gross ignorance which is relied upon 
 as implying criminal responsibility^ it is attempted to give evidence 
 that the same person had not been successful in other cases with 
 a like treatment ; but this, according to the rules of evidence, is 
 inadmissible.— R. v Whitehead, 3 C. & K. 202. 
 
 ^ 1 Hawk. P. C. c. 31, § 8. See ante, p. 70. 
 
 5 Foster, C. C. 261. And the Mosaic law said, that if the owner of 
 an ox knew that it pushed with its horn, and did not keep it in, and 
 it killed a man or woman, not only the ox, but the owner was to 
 be put to diedXh.—Exod. xxi, 9. « 1 Hale, P. C. 432. 
 
 VOL. I. B B
 
 370 OF THE SECURITY OF THE PERSON. fori. iv. 
 
 it may be a misdemeanour. This glaring defect of the 
 common law was fortunately remedied in 1603 by a statute 
 which ordered an infected person to keep his house, and 
 taxed the inhabitants for means to keep in houses for 
 the purpose such as were so infected ; and if the infected 
 person went abroad, he might be arrested as a felon.^ And 
 under that statute, a writ de leproso amovendo could be 
 obtained to seize and imprison a leprous person, and if he 
 went about, he could even be killed with impunity.^ The 
 quarantine laws or statutes had also no other object than to 
 prevent infected persons going abroad from foreign vessels, 
 and spreading some deadly disease on unsuspecting people. 
 A master of such vessel is subject to a penalty of 400/. for 
 quitting, or allowing his passenger to quit, or not going to 
 the appointed place ; and the passenger may also be 
 imprisoned six months, and forfeits 300/.^ 
 
 In modern times it has been held to be an indictable 
 offence for one suffering from a contagious disease, such as 
 small-pox, to be unlawfully or without necessity in a public 
 place where infection may be communicated.* But this is 
 too small a protection to mankind ; and hence the legisla- 
 ture has come to the aid of human life with supplementary 
 details. Each sanitary authority is authorised to provide 
 proper conveyances for carrying infected persons through 
 streets ; and if such persons are without a proper lodging, 
 then of removing them to an hospital. And a person suffering 
 from a dangerous infectious disorder, who wilfully exposes 
 himself in streets and public places, or enters public convey- 
 ances without proper precautions, is subjected to a penalty 
 of five pounds. And for like reasons a penalty of twenty 
 pounds is imposed on those who let houses and lodgings, 
 which they know to be tainted with infectious disorders.^ 
 
 Killing hy swearing away another s life. — Perjury also 
 may kill one. Thus if a witness falsely swear away life, 
 and thereby cause an innocent person to be condemned and 
 executed, he may be convicted of murder ; and such seems 
 to have been the ancient law,*"' as well as the opinion of Lord 
 
 1 1 Jas. I. c. 31 ; 3 Ch. I. c. 4 ; IG Cli. I. c. 4, repealed in 1837. 
 2 Heath arg., Stroud's Case, 3 St. Tr. 284. 3 g Geo. IV. c. 
 
 78. '' E. V Vantandillo, 4 M. & S, 73 ; R. v Burnet, 4 M. & S. 
 
 272. •'• 38 &3y Vic. c. 55, §§ 120-129. 6 Mirror, c. 1, § 9 ; Brit, 
 c. 52 ; Bract, lib. iii. c. 4 ; 1 Hawk. P. C. c. 31, § 7 ; 3 Inst. 91, 224.
 
 en. IV.] MURDER BY POISON. 371 
 
 Mansfield and of Blackstoue. But Foster, ^vlli]e observiiii^- 
 that ancient writers are of uncertain authority on the 
 subject of homicide, seems to think this offence, if it he 
 one, only coo'nizable inforo cceli ; and that, if it had been 
 law it was singular that the enemies of Titus Gates had 
 never thought of bringing it to bear on him.^ But the old 
 common law scarcely doubted that this kind of killing was 
 a capital offence, and Coke says, as David killed Uriah with 
 his pen, so such men kill one with their tongue. In 
 cases of this kind it is not enough to say, that no visible 
 or physical means are used, and so there can be no murdei', 
 for that rule depends, not on any importance as to the 
 visibility of the means so much as the difficulty of tracing 
 cause and effect. Here the deliberation and intent are 
 ready to hand. And though perjury has its appointed 
 mode of punishing false evidence, yet if the death is shown 
 clearly to be a consequence of the act of false swearing, 
 there seems no possible reason why murder should not be 
 committed in this way. To say that a man should not be 
 punished for one crime, because he by the same act com- 
 mitted also another, seems to be untenable. Though some 
 cases, therefore, of doubtful authority encouraged the 
 notion, that murder cannot be committed by mere words, 
 there seems no ground for restricting the proof of murder 
 to any particular means, so long as the connection of 
 cause and effect is clearly demonstrated by such evidence 
 as all mankind agree to be sufficient. There is and can be 
 no magical importance attributable to any one out of the 
 great variety of means open to the craft and ingenuity 
 of malignant minds. Indeed, murder by poisoning at first 
 differed little in the kind and cogency of its evidence from 
 murder by words and speeches ; and the operation of 
 poisons was long equally mysterious and inscrutable, till 
 chemical science and post-mortem examinations reduced it 
 to rules and observations easily followed and traced out. 
 
 Poison as a means of murder. — Though murder by poison 
 seems in modern law to differ in no conspicuous quality 
 from other kinds of murder, it seems to have not been 
 included in the earliest notions of murder. Probably at 
 first murder was practised chiefly by blows, and swords, 
 
 1 Foster, Rep. 131 ; 1 Leach, 44 ; 1 East, P. C. c. 5, § 94 ; 4 Bl. 
 Com. 196. 
 
 B B 2
 
 372 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 and weapons of offence. In onr own law it has been said, 
 that poisoning was thought not to be included in the 
 category of murder, because it was not done by the hand 
 of man. The first statute of 22 Henry VIII., c. 9, which 
 ordered a wilful poisoner to be boiled to death, was passed 
 in consequence of a cook, named Richard Roose, having 
 poisoned a pot of porridge prepared for the Bishop of 
 Rochester and his family, as well as the poor of the parish, 
 on which occasion seventeen persons died. The cook's 
 trade probably suggested the mode of death, but poison as 
 a means of murder was no longer to be passed over by the 
 law.^ The statute of Henry VIII. was repealed by one 
 of Edward VI., which expressly declared killing by 
 poisoning to be murder, and so included it in the common 
 category ; and enactments to the same effect have been 
 continued to the present day.^ The miu'dering of a 
 person by poison does not substantially differ from other 
 cases, except in the peculiarity of the means by which 
 poison operates. Poison is generally administered secretly, 
 and a train of circumstances often intervenes between the 
 original design and its execution. The essence of the crime 
 lies in the deliberate intention, that the poison shall be so 
 placed, that, by the operation of ordinary laws and in the 
 usual course of affairs it will enter the body and cause 
 death ; and the fatal end is easily connected, if the poisoner 
 has laid his train in a manner calculated to produce the 
 effect intended.^ But it has been found, that between the 
 laying of the poison and the effect produced very many 
 accidents intervene. The intent may be so imperfectly 
 worked out, owing to the production, not of a fatal, but only 
 an injurious effect, or possibly a mere abortive result alto- 
 gether — the sequence of events may be so easily modified 
 by supervening and unexpected interruptions — and the 
 connection between the malicious design conceived and 
 the final effect on the intended victim may be so obscure 
 and remote, that a special enactment has been made 
 to assign a more definite punishment to the different 
 
 ' Barrinc:t. Stat. 525. 
 
 ■^ 1 Ed, VI. c. 12 ; 24 & 25 Vic. c. 100, § 11. In the Welsh laws of 
 the sixteenth century, if a convicted poisoner could not pay a double 
 composition fine, he nn'olit be }ian,c:cd, burned, or slain. — Welsh Laws, 
 h. iv. c. 3. M East, P. C. §§ 12, 30 ; 4 Bl. Com. 200.
 
 OH. IV.] DEATH WITHIN ONE YEAR. 373 
 
 situations. And more frequently tlie offence assumes 
 the form of an attempt to murder rather than murder 
 itself Consequently the subject will be found more 
 appropriately treated under this last head.^ 
 
 Killitig nmst be consequence of the act charged. — There 
 are many instances in which the murder of the individual 
 has not been deliberately intended by the accused ; never- 
 theless, if some other felonious act lias been done, and 
 the immediate consequence thereof is the death of such 
 individual, the law views such death as if it were 
 immediately and wilfully caused — the doctrine being, that 
 every man must have intended the natural consequences 
 of his act, and if one of such consequences be the death of 
 a third person, then the doer of the act which immediately 
 caused it is a murderer. But if the death is not one of the 
 natural consequences of the felonious act, then the crime 
 committed has been said to be not murder, but only 
 manslaughter, and perhaps not even that.^ It often 
 happens, as formerly stated, that an illegal act miscarries, 
 as to the individual intended to be murdered, and takes 
 effect against one who was not so intended, and thus a person 
 is killed partly by mistake for some other person. In 
 such cases the law, by the doctrine which may be called a 
 transmutation of motives, imputes to the perpetrator the 
 same guilty malice towards the person killed as actually 
 existed against the person intended to be killed.^ 
 
 Killing in order to he murder must he within the year. — 
 In tracing the connection between the death and the 
 murderous blow, many legislatures have thought it in- 
 cumbent to put some limit to the time during which this 
 sequence of events must take effect. A statute of Henry 
 VII. enacted, that murderers should be prosecuted within 
 the year and day, though if acquitted, they might be kept 
 in prison till the year and day passed ; and the wife or 
 heir anciently had a right of appeal within that time.* Hale 
 
 » See^os?, Attempts to Murder. 2 r „ Horsey, 3 F. & F. 287. 
 
 3 R. V Lewis, 6 C & P. 161 ; Foster, 262 ; Kel. Ill ; 1 Hale, P. C. 
 441 ; R. V Saunders, Plowd. 474. See ante, p. 338. 
 
 ^ 3 Hen. VII. c. 2. In Bretagne the time of death must be within 
 forty days, and in Lucca thirty days, and in the Stabbing Act of 
 2 Jas. I. c. 7, the death must have ensued within six months. — 
 Barringt. Stat. 527. To get rid of difficulties like these, the Chinese
 
 374 OF THE SECURITY OF THE PERSOX. [cu. iv. 
 
 gives as the reason, why it is no murder, if the wounded 
 do not die within year and day, that it cannot be dis- 
 cerned, as the law presumes, M'hether the death was 
 violent or natural. In other words, if the death does not 
 follow within that time, the connection between cause and 
 effect is too remote and uncertain, and the evidence can 
 never be sufficiently cogent to satisfy the mind. The 
 application of such an arbitrary rule, which fixes on a mere 
 limit of time as a criterion of cause and effect has unavoid- 
 ably led to certain difficulties ; for it is obvious there may 
 be wounds, which, if carefully treated, might be cured, and 
 if otherwise might be fatal. A slight blow may kill a sick 
 person which would be harmless to a sound person ; and 
 hence further distinctions require to be made to meet 
 the variations arising out of the state of the wounded 
 person, and the different complexion given to the con- 
 sequences of the wound. Wliere, therefore, a death has 
 occurred, which is attributed to a wound given within a 
 year and day previous, there seem to be two questions : 
 (1) whether the wound was in itself mortal, that is, in 
 the ordinary state of tilings, in all probability calculated 
 to cause death ; (2) whether the treatment of the wound 
 was so careless, having regard to the reasonable means 
 of care available to the wounded party, that the death 
 is to be attributed to this careless treatment, or some 
 supervening cause irrespective of the wound, rather than 
 to the wound itself. In tracing the progress of the wound, 
 it seems reasonable, that the accidents of life and the 
 circumstances of the party as to health and otherwise 
 should not be used to clear the party of the crime of 
 murder ; but should rather be used in favour of the party 
 who has died; for the law is bound to protect the life 
 <jf the careless and the careful, the sick and the sound, 
 the odious and the virtuous, the poor and the rich alike ; 
 and the crime which in its essence existed if at all at the 
 beginning, in the intent of tlie party wounding, should 
 not be left to vary with the hazard of so many obscure 
 
 code allowed the magistrates, when inquiring into the case of 
 wounding, to fix the nuniherof days during which the responsibility 
 • it the accused sliduld last ; and if the injured party died after that 
 f)eriod, the oJfciuh'r slioiild not he punislied for a capital ollence, 
 but according to a lower scale of punisluueat. — iSlaunlun, Cude, 328.
 
 CH. IV.] BODY OF MUKDERED PERSON FOUND. 376 
 
 sequences of events.^ Lord Hale said, that a man is not 
 to be permitted to apportion his own wrong.'^ Hence, 
 where a blow accelerated the death of a sick person — ^ 
 where a death was accelerated by administering Morison's 
 ])ills to a person suffering from small-pox,^ it was held that 
 murder was committed. And little regard is to be paid to 
 any attempt of those, charged with murder, to sliow that the 
 wounded person might have recovered if he had submitted 
 to a surgical operation ; ^ or if his wounds had been 
 properly treated;*^ or if the brandy necessarily adminis- 
 tered had not entered the lungs and so caused the death.''' 
 If it happen that the wounded person does not recover, 
 tlie guilt of murder will be the same, for due care cannot 
 always be secured as a consequence of a dangerous wound, 
 and it is right that that risk should be with him who 
 caused it.^ 
 
 Killing proved only ivhen evidence of body found. — It has 
 been said to be a rule, that no conviction for murder can be 
 sustained, unless the body of the alleged murdered person 
 has been first found ; ^ and Hale says it was a rule of the 
 civil law also.i° This, however, is rather a rule of evidence 
 or a maxim of caution ; for, until there is some satisfactory 
 proof that the murder was certainly committed, it would 
 be idle to prove that the defendant committed it.^^ It 
 cannot, however, be laid down, that in no case can the 
 nmrderer be convicted till the body of his victim be found, 
 for the death may be proved by secondary evidence or by 
 the circumstances of the death. And this was held to be 
 sufficiently made out, where the deceased was thrown into 
 the sea under circumstances which showed the body to 
 be then dead.^^ In such cases it is usual to call every 
 witness who was present at the time of the alleged murder, 
 so as to acquire the most certain knowledge of tliis 
 preliminary fact.'^ And until the body has been found, 
 
 > 1 Hale, P. C. 428 ; Rew's Case, Kel. 26. 2 i Hale, P. C. 428. 
 
 3 R. V Martin, 6 C. & P. 128 ; R. v Murton, 3 F. & F. 492. ^ R. v 
 Webb, 1 M. & Rob. 405. ^ R. v Holland, 2 M. & Rob. 351. 
 
 « R. V Reading, 1 Keb. 17 ; R. v Rew, Kel. 26 ; R. v Pym, 1 Cox, 
 C. C. 339. ^ R. v Mclntyre, 2 Cox, C. C. 379. » R. v Tinckler. 
 1 East, P. C. 230 ; R. v West, 2 C, & K. 784. » 2 Hale, 
 
 290. "> Dig. xxix. 5, 24. >i R. v Hopkins 8 C. & P.591. 
 
 '^ R. V Hindmarsb, l.each, 569. '3 k. „ Holden, 8 C. & P. 606.
 
 376 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 there is no rule of law, requiring an absolute presumption 
 of guilt to be drawn from the fact, that the prisoner 
 has not accounted for the body, though last traced to his 
 control.^ 
 
 Hale mentions however cases showing what great caution 
 is required, when the dead body has not been with cer- 
 tainty traced ; as where a cruel uncle corrected his niece, 
 who ran away, and in his desperation he dressed up 
 another child to resemble the lost one, who in full time 
 returned and claimed her estate, the uncle having been 
 meanwhile executed for her murder.^ In another case B 
 was tried and executed for murdering A by burning him 
 in an oven, the truth being that A had been sent by B 
 beyond sea, and afterwards returned. In another case 
 some men were tried and executed for murdering their 
 captain and seizing his ship, the fact being that the captain 
 had gone ashore on an island and was kept by the natives.^ 
 And three persons were tried and executed for the murder 
 of a gentleman, who had been in his walks suddenly seized 
 by robbers and taken to foreign countries.* 
 
 Death hy accident or misadventure. — Viewing the subject 
 of death by misadventure apart from its historical treat- 
 ment, it may be described negatively as including aU such 
 cases of homicide as do not amount to manslaughter or 
 murder, or any negligent actionable wrong, and do not flow 
 from any lawful conduct or business of the killer. There 
 are many occasions in life, where the facts are so imperfectly 
 understood, that it is impossible to say at first whether 
 murder or manslaughter has been committed. But when, 
 with or without full inquiry, the conclusion is arrived at, 
 that neither of these crimes was committed, then the 
 further conclusion follows as of course that the person, 
 whose act occasioned the death of another is entirely free 
 from guilt, though not free from civil liability owing to 
 nedioence. There is no middle course between the crime 
 of manslaughter and entire freedom from criminal respon- 
 sil:)ility. His act may have been one of a chain of events 
 — or it may have immediately preceded the death — but 
 
 1 R. V Hopkins, 8 C. & P. O'Jl ; K. v Cheverton, 2 F. & F. 833. 
 2 3 Inst. c. 104. ^ 10 Pari. Hist. 284. ^ Perry's Case, 
 
 14 St. Tr. 1320.
 
 fH. IV.] PUNISHMENT FOR ACCIDENTAL DEATH. 377 
 
 there being no logical connection between the two events 
 in the eye of the law, the whole circumstances must be 
 viewed in the same light as if the dispensations of Provi- 
 dence had proceeded in their own order, irrespective of the 
 volition of man, and as if the death of the one person 
 happened naturally and in no other sense to follow the act 
 of the other. There was a sequence of events, but no cause 
 and effect. Why this sequence should have occurred it is 
 vain to inquire further, since the decrees of Providence 
 are at once beyond all scrutiny. 
 
 It is to be borne in mind however, as formerly mentioned, 
 that though there is no alternative between murder and 
 manslaughter on the one hand and mere fortuitous accident 
 on the other, this does not imply, that there may not be 
 such negligence as will support a civil action. The negli- 
 gence that may be blameless in one view may be blaraable 
 in another : and indeed it is difficult to draw the line of 
 demarcation clearly between actionable negligence and 
 negligence not criminal. It seems only one of degree, and 
 yet that degree is scarcely capable of clear expression. 
 The negligence, the recklessness, the utter want of judg- 
 ment and circumspection, are only a little less in the one 
 case than the other, yet this makes all the difference 
 between the two remedies. The actions for negligence 
 may thus be said to till up a large space lying between 
 manslaughter on the one hand and misadventure or pure 
 accident on the other hand. 
 
 Ancient laws confounded accidental death with murder. — 
 Though it may seem a truism to modern civilisation, that 
 death to one man may be caused by the act of another 
 man, and yet no l)lame whatever may arise, being what is 
 deemed the merest accident, which no wisdom and care 
 can wholly avoid, yet most ancient nations, including our 
 own, could not draw this nice distinction. Barbarism 
 cannot afford the necessary thought to go into niceties of 
 degrees of culpability ; and hence whenever one man was 
 in any sense mixed up in the death of another, one indis- 
 criminate conclusion was drawn, that he was guilty — his 
 punishment could not be passed over — and some kind of 
 expiation must be demanded. And somewhat singular, 
 if not childish, were the practices and expedients by 
 which they gave effect to this conscious and inarticulate
 
 378 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 ban, under which all kinds of manslayers were singled out 
 and punished.^ 
 
 The same want of discrimination in early English law. — 
 In our own early law we find the traces of the same 
 modes of thinking. Misfortune was recognised in the 
 time of Henry III. as a ground of exemption from the 
 murder fine.^ And a king's pardon was required to 
 exempt the unfortunate author of an accidental death 
 from the guilt of murder. The slayer of a thief or 
 burglar, or of a person in chance-medley, was expressly 
 declared by a statute of Henry VIII. not to forfeit his 
 lands or goods, but was to be acquitted.^ And a bill was 
 introduced in Queen Elizabeth's time, to exempt one, who 
 killed anotlier at a certain sport, from forfeiture of goods 
 or chattels.* In short, homicide by accident or misadven- 
 ture used in our early law to be punishable by forfeiture 
 of goods and chattels. Coke, Hale, and Blackstone try to 
 explain away this by saying, that though it is but a man's 
 misfortune, yet the king has lost a subject by the accident, 
 and the man who caused the accident ought to have been 
 
 ' In the law of Moses homicide was distinguished as deliberate or 
 deceitful, as culpable, and as fortuitous. The first was punished with 
 death, the second only with exile or confinement in a city of refuge 
 until the death of the high priest. — Numb. xxxv. 23, Dent. xix. 4, 6, 11, 
 Exod. xxi. 14. Herodotus said that Adrastus, owing to his killing 
 his brother by accident, was banished and dispossessed, and fled to 
 the court of Croesus, desiring to be purified of blood. — Herod, b. i. 
 And the banishment lasted for a year. And Homer mentions the 
 horror of spectators as a manslayer fled to a foreign country. — Iliad, 
 b. xiii. 24. And though the Roman law took little notice of involun- 
 tary or accidental homicide, the Church soon introduced a deeper 
 sense of the sacredness of life, and treated jealously what might 
 otherwise pass without censure. Thus though a master was admitted 
 to have the power of beating a slave, yet even though there was no 
 malice aforethought, or unfairness in the means of punishment, the 
 ecclesiastical law treated such killing as a ground of penance. — Bing. 
 Chr. Antiq. b. c. xix. lU. In Japan also accidental homicide subjected 
 the unfortunate author to death equally with the deliberate murderer, 
 the only difference being, that he was in the former case allowed to 
 be his own executioner.— iiarrmc/^. Stat. 71. And latterly he was 
 subject to banishment. — Dickson's Japan, 341. And among the 
 Kaffirs no distinction was made between wilful nuirderand any other 
 homicide. — Alucleun's Kaffirs, 60. In Benin, Africa, where a man was 
 kilknl, a slave was killed to appease the dead man's gliost. — 6 Univ. 
 Mod. J list. 583. '^ Stat. Prov. 43 Hen. 111. § 25. 
 
 a 24 Hen. VIII. c. 5. ■> 8 EHz. ; 1 Pari. Hist. 717.
 
 CH. IV.] PUNISHMENT FOR ACCIDENTAL DEATH. 379 
 
 more careful. Hence he forfeited his goods to the kint^ 
 hy way of learning the lesson of taking greater care.^ 
 But a statute of George IV. treated these attempts to put 
 the hest face on a bad law as valueless and repealed the 
 law altogether, setting the case on its right footing as one 
 of mere accident and carrying blame to none. 
 
 These cases of death by misadventure thus come into 
 view, wherever the facts have failed to involve such fault 
 or negligence as forms the ingredient of manslaughter ; as, 
 for example, where workmen without blame killed a 
 ])erson passing in an unfrequented place :- where the bead 
 of a hatchet flies off and kills a bystander : where a driver 
 in the dark drives over a person : where a sportsman shoots 
 at something moving, and not suspected to be a human 
 creature : where a gun goes off when examining it, or turns 
 out to be loaded, without the knowledge of the user: where 
 a child is being reasonably corrected, but by some unfore- 
 seen calculation the stroke proves fatal : where in shooting 
 at a butt, some person comes unawares within range, and 
 is killed. In these and numerous cases, embracing the 
 diversified situations in Life, the law first jealously looks 
 at the whole circumstances, and if satisfied that the person, 
 whose act causes the death, was not deficient in reasonable 
 care and forethought — that he did not omit anything which 
 he ought to do, and did not do anything which he ought 
 to have omitted — treats the calamity as entirely unfore- 
 seen and fortuitous. Human foresight is only condition- 
 ally wise, and the law does not exact impossibilities, and 
 accepts and makes the best of the frailties of human 
 nature. No one is held to warrant, at the risk of his own 
 life, that he will always act in every conceivable situation 
 of life so as not to cause the death of any other human 
 creature, for in order to do this omniscience and omnipo- 
 tence must be required. 
 
 Dificulties of the ancients in pimishing homicide. — No- 
 thing seems to have perplexed ancient nations so much as 
 the mode of dealing with murderers, and with the death 
 of one human being when caused by another's act; and 
 three remarkable features of their law deserve some notice, 
 though the ideas they represented have been long unknown 
 
 > 2 Inst. 148. 2 1 Hale, P. C. 472 ; 1 Hawk. P C. c. 29, § 4 ; 
 
 Fost. 202 ; 1 East, P. C. c. b, S 38.
 
 380 OF THE SECUEITY OF THE PERSON. [ch. iv. 
 
 to modern civilisation. It appears that all modern nations 
 passed through the same stages of thought on this subject 
 in their earlier history. These three stages related to the 
 practice of the blood avenger, and cities of refuge or 
 sanctuaries — the practice of paying a murder-fine, which 
 was partly substituted for the former — and the practice of 
 deodands, or confiscation of the thing which was instru- 
 mental in causing the death. 
 
 The notion of a hlood avenger. — Among the ancient and 
 barbarous nations, whether a man was slain by accident or 
 not, the wisest course that occurred to them was to let the 
 nearest relative of the dead man have his will, and kill 
 or assassinate the slayer, and often the slayer's relatives 
 also, without mercy or compunction, or the formality of 
 trial, or even an hour's breathing time. It was at a 
 later period generally deemed but fair, that the doomed 
 man should have one chance for his life ; and hence, if by 
 superior speed or skill he could outrun the avenger for a 
 certain distance and reach a city of refuge or sanctuary, 
 then he was not to be murdered, but to be let alone, at 
 least for a time, till he banished himself in due course 
 from the country. The practice of a blood avenger seems 
 traditionary in every ancient society.^ The punishment 
 of murder was left by the law of Moses to the blood 
 avenger, who felt bound in honour to slay the murderer 
 whenever and wherever he could find him.- Where no 
 blood avenger appeared, or he was dilatory, the magistrate 
 was bound himself to punish the murderer.^ The mode 
 of slaying the murderer was not subject to restriction, 
 being left to the avenger. But though other nations 
 afterwards allowed the murderer to offer a sum of money 
 as expiation, this was expressly forbidden by Moses.* 
 
 1 Du Boys, Dr. Cr. 696. '^ Gen. is. 5, 6. 3 Michaelis 
 
 Com. 233. 
 
 ■* Numb. XXXV. 31 ; Deut. xix. 6 ; Josh. xx. 5. The Arabs were 
 said to have a behcf, which seemed also reco^-nised by David, 
 that no dew falls on a place where a murder has been committed 
 until the blood has been avenged. — 2 Sam. i. 21. Tiie office 
 <if the blood avenger was also seen among the ancient Greeks. — 
 Plato, De Leg. 9. The relatives incurred a tine, if they did not pro- 
 secute the criminal, unless tlie deceased had forgiven tlie act as 
 unintentional. Among the ancient Scandinavians a man and his 
 relatives would lose their reputation, if they did not avenge the
 
 CH. IV.] PUNISHING MURDERER'S RELATIVES. 381 
 
 The murderer's relatives also punished. — The practice of 
 punishing parents for the crimes of children, and chiklren 
 for the crimes of parents, and other relatives besides, was 
 also a common notion of justice among ancient nations ; 
 the reason being supposed to be that the spirit of revenge 
 is so insatiable, that nothing less than the blood also of 
 those who were supposed dear to the criminal could 
 satisfy the blood avenger. But Moses prohibited this 
 barbarous custom ; ^ at the same time, whenever a person 
 was found murdered in the fields, the magistrates of the 
 nearest city were bound to make a solemn avowal of their 
 utter ignorance of the murderer, as well as to perform 
 certain ceremonies amounting to expiation.- To this day the 
 natives of Central Africa and of America put to death the 
 relatives of a man found dead.^ The ancient Macedonians 
 also punished the relatives and children.* It ought not, 
 
 kinsman's decath. But gradually magistrates were appointed, who 
 obliged the offended person to accept a present as a composition 
 from the aggressor, which composition varied according to the rank 
 of the slain. — 1 Mallefs North. Antiq. 184. And among the savages 
 of Australia it was deemed the holiest duty to avenge the death of a 
 relative, and it was a disgrace not to do so. — 2 Grey's Austr. 240. 
 In ancient Abyssinia, when a criminal was pierced to death by lances, 
 the relatives of the murdered had the first thrast. But the prose- 
 cutor often held a feast, and in the presence of the doomed man 
 discussed the details of the intended cruelties to be shortly inflicted 
 on him. — 6 Univ. Mod. Hist. 215. 
 
 Besides the composition to relatives for murder and personal 
 injuries, the codes of barbarians required a certain duty, cs\\q& fredurn 
 to be paid by way of acknowledgment of protection against the right 
 of prosecution, and /reeZ in Swedish signifies peace. — Montesq. b. xxx. 
 c. 20. Clotharius, about 595, made a wise decree, forbidding a person 
 robbed to receive a clandestine composition without an order of a 
 judge. These fines became according to the laws of the Franks, a 
 source of revenue to the lord. — Ibid. c. 19, 20. St. Louis of France, 
 about 1248, in the custom of Beauvoisin, with a view to prevent the 
 avenging of crime, ordered a truce of forty days to intervene before 
 any step could be taken. — 3 Guizot Civ. Fr. led. 14. 
 
 1 Deut. xxiv. 16 ; 2 Kings, ix. 26 ; xiv. 5, 6 ; Josh. vii. 24, 25. 
 ■^ Deut. xxi. 1-9. ^ 1 Schwenf. 307 ; 1 Bancr. Nat. Rac. 702. 
 
 * Q. Curt. b. vi. In Cochin China and Japan, for some of the 
 higher crimes, the relatives of the criminal were also executed. — 
 8 Pink. Voy. 481 : DicksorHs Japan, 256. And in China, in cases of 
 treason, all the near male relatives above sixteen, and other relatives 
 if living under the same roof, were indiscriminately beheaded also, 
 and the children sold us slaves.— <Sto«/,/ort's Code, 2G9. And tlie
 
 382 OF THE SECURITY OF THE PERSON. [^ii. iv. 
 
 however, to be forgotten, that Bion, one of the seven wise 
 men, said it was as absurd to punish children for the faults 
 of their fathers as to give physic to one, to cure another.^ 
 
 Cities of refuge and sanctuaries qualified the ancient 
 barbarities of blood avengimg. — It is not to be wondered, 
 that contemporaneously with, and as some check on the 
 savage rage of the blood avenger, the idea should have 
 occurred of giving one chance of life to the guilty man so 
 soon to be done to death. This idea ultimately took shape in 
 the practice of sanctuaries.^ Montesquieu said this practice 
 
 same in Japan. — 4 Univ. Mod. Hist. 15. In Peru, where the fathers 
 were punished for the crimes of the children, tlie reason given was 
 that the parental power ought to have been sufficient to prevent the 
 crime. — Montesq. b. vi. c. 20. In rude savage tribes of the present day 
 it is observed, that, if a murderer cannot be found, the next best thing 
 in their view is to kill his relations, and in their minds guilt goes by 
 clans. — 2 Grey's Austr. 2.38. In ancient Abyssinia, if a murder 
 could not be proved against any one, all the inhabitants of the place 
 were severely fined or flogged. — 6 Univ. Mod. Hist. 215. The Brehon 
 laws provided, that, if a teacher for hire instructed a stranger, he was 
 responsible for the pupil's crimes. — 2 O'Curry, 79. 
 
 1 Plut. De Ser. 
 
 2 Moses mitigated the coarser incidents of the barbarous practice 
 of blood avenging by providing cities of refuge to which the pursued 
 might flee and be safe. — Numb. xxxv. 9-35 ; Deut. xix. 1-10. 
 Where indeed the murder was deliberate and violent, the criminal 
 was to be torn even from the altar and put to death. — Exod. xxi. 14. 
 But in other cases Moses provided, that the roads should be kept 
 straight and in good order, to give the criminal a fair chance of escape. 
 — Deut. xix. .3. The escape thus in reality depended on the relative 
 epeed and dexterity of the parties. If the criminal first reached the 
 city of refuge, he was entitled to have the circumstances investigated, 
 and if it appeared to be an accidental or not a culpable death, he 
 was entitled to protection if he kept within the city, or 1,000 ells 
 from it. If he strayed beyond that sacred fence the blood avenger 
 might at discretion slay him. — Numb. xxxv. 26, 27. But if the exile 
 remained until the death of the priest, he was free then to return to 
 his home, and the blood avenger could no longer prosecute the suit. 
 Among the ancient Egyptians, even slaves were safe in fleeing to 
 the temple.— Herod. B. 2. The Greeks allowed the guilty as well as 
 the innocent to betake themselves to an asylum, and the temples were 
 80 abused by the rabble of i)ronigates, that, when the Greek cities sent 
 deputies to the Ronum Senate to defend their ancient rights of im- 
 munity, Tacitus gloried in the spectacle of these ordinances of kings 
 and ceremonies of gods being with a strong hand overruled and 
 suppressed. — Tac. Ann. h. iii. c. 36. But the practice kept its ground, 
 lionorius forbade any one to molest persons taking sanctuary. — 
 Cod. Just. i. 12, 2.
 
 en. IV.] SANCTUARY FOR CRIMINALS. .^83 
 
 of sanctuaries for criminals was civilising, owing to its allow- 
 ing expiation and satisfaction for murder ; for in Malacca, 
 where none was allowed, the murderer, being certain of 
 being assassinated, abandoned himself to fury and killed 
 or wounded all he met.^ But Beccaria says nevertheless, 
 that sanctuaries are opposed to the public good, and that 
 history informs us, that from the use of them have arisen 
 the greatest revolutions in kingdoms and in opinions."^ 
 
 The privilege of sanctuary was recognised in the laws of 
 King Ethelred, who permitted one, who had forfeited his 
 life and sought a church, to preserve his life either by paying 
 
 Three conditions of the privilege of sanctuary were, that the 
 fugitive was not to flee with his arms upon him, nor to use any 
 indecent clamour, nor to eat or lodge in the church, otherwise force 
 of arms was used to eject him.— Corf. Theod. lib. ix. tit. 45, leg. 4 ; 
 Cod. Justin, lib. i. tit. 12, leg. 8. Early in the Christian era churches 
 became well established sanctuaries. It is said that there are no 
 laws relating to this matter earlier than Theodosius, a.d. 392, though 
 his law is rather a regulation of an existing practice than the 
 creation of a new right. — Bingham, Christ. Antiq. b. viii. c. 11. 
 The Theodosian code recognises not only the altar of the church, but 
 the whole space between the outward walls, as well as the appurten- 
 ances and houses of the bishop and clergy, as part of the privileged 
 area. And, indeed, not on\j churches, but the statues of emperors, 
 the bishop's house, the sepulchres of the dead, schools, monasteries, 
 and hospitals, shared the sacred privilege of asylum. — Eittershus. de 
 Asylis. c. 3. 
 
 This privilege was not intended to shield the fugitive from legal 
 process, but rather to give time for preparing a defence and for 
 claiming any exemption, such as bishops might insist upon. And 
 thirty days' protection was deemed by Justinian ample time to end 
 any controversy before a civil judge. — Justin. Novel, xvii. c. 6. And 
 only three days" by King Alfred. — Lambard De Legih. Angl. 28. And 
 during this interval, if the refugee was poor, he was maintained by 
 the Church. There were, however, some crimes deemed too grave 
 to sufEer any such immunity. Such were peculators and defaulters 
 of public money. — Cod. Theod. lib. ix. tit. 45. Jewish debtors, or 
 criminals who pretended to be Christian converts, in order to claim 
 the privilege, heretics and apostates, slaves fleeing from their masters, 
 robbers, murderers, ravishers, and adulterers could be seized and 
 torn from the very altar. So that during the early centuries of Chris- 
 tianity the main object of sanctuary was only to give a temporary 
 respite to the oppressed and the innocent, at the intercession of the 
 clergy, but not to shield those, who had committed all kinds of 
 misdeeds and hcentiousness indiscrimately, or to the extent to which 
 the practice was abused in later times. — Decret. Greg. lib. iii. tit. 49, 
 0. 6 ; Gothqfred. Com. in Cod. Th. lib. ix. tit. 45{. leg. 5. 
 
 1 Montesq. b, xxiv. c. 17. ^ Becc. c. 35.
 
 384 OF THE SECUEITY OF THE PERSON. [ch. iv. 
 
 a fine, by perpetual thraldom, or by imprisonment.^ The 
 early rules as to sanctuary were, that whenever a person 
 committed a felony he might flee to a church, where he was 
 said to take sanctuary. It was the coroner's duty to go 
 and inquire into the case, and if the felon would neither 
 confess his crime nor come out of the church to be amen- 
 able to justice, his land and goods were liable to be seized, 
 the former by the crown, and the latter to be given to the 
 township. If the felon remained in sanctuary above forty 
 days after the coroner's visit, the county was bound to keep 
 him in custody, and he was held convicted. But he might 
 during that interval pray to abjure the realm, in which 
 case, after confessing the felony at the gate of the church, 
 he was allowed a reasonable time peaceably to depart from 
 the realm, never to return without the king's licence. He 
 was protected while setting out to the nearest port which 
 he or the coroner appointed, turning neither to the right 
 nor the left, going with a wooden cross in his hand, bare- 
 headed, barefooted, and ungirded.^ 
 
 The privilege of sanctuary seems to have at times shocked 
 the sense of justice even of the earliest ages. But Edward 
 II. would not allow the privilege to be disturbed.^ The 
 privilege was at last taken away from those guilty of trea- 
 son, and from pirates and heretics.'* As a next stage, all 
 sanctuaries except parish churches, churchyards, cathedral 
 churches, hospitals, and dedicated chapels, and places to 
 be named, were abolished. Certain places were declared to 
 be sanctuaries for all offenders except in murder, rape, 
 
 1 Laws, K. Ethelred, § 16. 
 
 ^ Britt. b. i. c. 17 ; Bract. 136 ; Fleta, 45 ; 1 Year Book, 30 Ed. I. 
 509. A statute of Henry VIII. required the coroner to mark with a 
 hot iron the letter A on the brawn or thumb of the riglit hand of the 
 party leaving sanctuary. — 21 Hen. VIII. c. 2. But an act next year, 
 reciting the mischief of abjured persons going abroad and teaching 
 foreigners, limited the party to one sanctuary Jor hfe declared by the 
 coroner. — 22 Hen. VIII. c. 14. And as a further watch on these 
 persons, they were ordered to wear a badge of ten inches square on 
 their upper garment when out of sanctuary, and neither to wear 
 weapons nor to be out after dark. — 27 Hen. VIII. c. 19. 
 
 ■' 9 Ed. II. Art. Cler. 10. In 1312, at Newcastle, a person who 
 violated sanctuary was ordered by the Bishop of Durham to go with 
 bare head and foot, and be scourged at the church-door by the curate 
 in presence of tiie whole congregation. — Lines, Scot. Mid. Ag. 195 
 
 ' 28 Hen. VIII. c. 7, § 13 ; 28 Hen. VIII. c. 15 ; 31 Hen. VIIL c. 14.
 
 CH. IV.] PAYING FINES FOR MURDER. 385 
 
 burglary, robbery, and common sacrilege.^ And finally in 
 1623 all privilege of sanctuary was utterly abolished.'^ 
 
 Ancient 2)vactice as to accepting fi.nes for tnurder. — There 
 was a time when all punishments were pecuniary ; the 
 crimes of the subjects were the inheritance of the prince.^ 
 Tacitus says, among the ancient Germans homicide was 
 atoned for by a fine of cattle, and the whole house of the 
 slain got a share in the indemnity.^ JVIurder at a later 
 stage among the German races was also satisfied by a fine, 
 but under the empire of Charlemagne it was punished 
 with death.^ 
 
 Ancient English law as to fines for murder and sanctu- 
 aries. — It is said to have been the ancient law of Ireland, 
 that until St. Patrick civilised the inhabitants, there was 
 no law admitting any composition for homicide, and death 
 was paid with death. St. Patrick introduced a new idea 
 (or perhaps rather adapted only an old idea), wdien he 
 ]:)ermitted the criminal to escape by paying a composition, 
 or eric, which his friends usually raised for him. If he 
 could not raise it, the criminal was put into a boat and set 
 
 • These places were Wells, Westminster, Manchester, Northampton, 
 Norwich, York, Derby, and Launceston, in each of which twenty 
 men were allowed.^ — 32 Hen. VIII. c. 12. But owing to the evils of 
 these sanctuary men sallying out and committing crimes, Manchester 
 was abolished, and Westchester substituted. — 33 Hen. VIII. c. 15. 
 Plowden resisted the abolition. — 5 Ph. & M. ; 1 Pari. Hist. 630. It 
 was owing to enormous abuses that Whitefriars was abolished. — 
 5 Pari. Hist. 1161. 2 21 Jas. I. c. 28, § 7. 
 
 3 Beccaria, c. 17. * Tac. Genu. c. 12, 21, 22. 
 
 5 Gibbon, Rom. Emp. c. 38. Responsibility for crime was an 
 affair of money with the Kaffirs, and if the offender was too poor 
 to pay, then his relatives were to do so either at once, or the debt 
 was registered against them — each clan being responsible to its 
 chief, and every hut or household for each member. — Macleaii's 
 Ka-fjirs^ 37. It is said also that among the Moguls, though a weryild 
 was payable to the relatives, yet it was deemed dishonourable to 
 claim it. — Barringt. Stat. 466. Among the North American Indians, 
 if a man was murdered his family alone had the right of taking 
 satisfaction, the rulers having nothing to do with the course of 
 action. — Trans. Americ. Soc. vol. i. p. 281. In Australia the criminal 
 could compound for his crime by submitting himself to the ordeal 
 of having spears thrown at him by all persons who felt aggrieved, 
 or by permitting spears to be thrust through certain parts of the 
 body, as the calf of the leg, or under the arm, and the amount of 
 punishment was accurately restricted to the nature of the crime.— 
 Grey's Austr. vol. ii. p. 243. 
 
 VOL. 1. C C
 
 386 OF THE SECURITY OF THE PERSON. [ch. tv. 
 
 adrift on the sea.^ In ancient Wales the composition for 
 murder was assessed in a systematic manner among the 
 relatives of the murderer, and the laws allowed relations to 
 the sixth cousin to be included in the joint liability.^ 
 And a fortnight as a limitation of time was allowed for the 
 avenger.^ The law or custom by which the kindred of a 
 person killed felt it their duty and a point of honour to 
 avenge his death and pursue the murderer was prominent 
 among our Saxon ancestors before and after the Conquest ; 
 and the development of the same practice by which a 
 composition or definite amount of money or cattle came to 
 be accepted in lieu of further punishment was common in 
 England, as in nearly all countries^ The next step was to 
 impose penance on the murderer over and above his 
 liability to pay some composition, and this penance con- 
 sisted either in self-mortification, or genuflections, and 
 prostrations, and almsgivings.^ 
 
 The practice of the homicide compounding for the deatli 
 of the victim led to associations of individuals or guilds, 
 which consisted of persons who shared the burdens and 
 lienefits of the blood feuds among each other, and which took 
 local shape as a tithing or frankpledge, consisting of ten 
 persons, while a hundred consisted of 100 individuals. The 
 inspection of these tithiugs, or the view of frankpledge, 
 belonged to each court of the hundred, and a manor 
 usually included one or more of these hundreds. The 
 exaction of some security that each was a member of a 
 tithing, and able to take part in the peace pledge, was carried 
 out strictly by the Danes, who made each tithing respon- 
 sible for its murders.^ Under the Saxon laws the gylds- 
 men in each tithing were not only bound to present their 
 fellows before the court when specially summoned thereto, 
 but they found their own advantage in exercising a kind of 
 police surveillance over them all. If a crime was com- 
 mitted, the gyld were to hold the criminal to his answer ; 
 to clear him if they could conscientiously do so by making 
 oath in his favour ; to aid in paying his fine if found guilty, 
 and if by flying from justice he admitted his crime, they 
 
 1 2 O'Curry's Lect. 29. ^ Vened. Code. ^ Dimet. Code, 
 
 b. ii. c. 8. * Arict. Laws of Wales ; Anct. Laws of Ireland. 
 
 ' Anct. Law of England, Ecyles. Inst. ** Anct. Laws of 
 
 England, lOdgar ii. ; Atlielstan v. ; Hen. I. vii, ; Cnut, Sec. 20.
 
 ru. IV.] DEODANDS. 387 
 
 were to purge themselves on oath from al] guilty knowledge 
 of the act and all participation in his flight, failing which 
 they were themselves to suffer mulct in proportion to his 
 offence. On the other hand, they were to receive at least a 
 portion of the compensation for his death, or of such other 
 sums as passed from hand to hand during the progress of 
 an Anglo-Saxon suit.^ At a later stage the relatives took 
 the place of the gyld, and paid the wehrgyld of tlie slaiu.^ 
 And similar rules prevailed in ancient Ireland.^ Though all 
 men were ordered to attach themselves to a hundred or 
 tithing, so as to entitle themselves to such composition and 
 to the ordeal ; * and in the time of Edward I. murder being a 
 secret killing of a person unknown, the hundred was fined 
 for it ; ^ yet these gilds, or bandships, formed by the English 
 as a mutual support in all quarrels, robberies, and murders, 
 were suppressed by a statute of 1377.^ But the majority 
 (vf the towns in England are said to have obtained exemption 
 from the murder fine sometime near the reign of Eichard 
 L, and most had obtained it in the reign of John. The 
 city of London had obtained the exemption by a charter of 
 Henry I.'^ 
 
 Confiscation of thing cmising death — Deodands. — Some of 
 t he ancients were not satisfied with classimr the unfortunate 
 persons who accidentally caused another's death among 
 murderers, but they extended their condemnation to the 
 inanimate stones, or unreasoning animals, which played 
 any part in the same misfortune. To keep up the sacred- 
 ness of life, the laws of Moses made it necessary that the ox, 
 if it had gored a man to death, should be stoned to death.** 
 
 1 1 Kemble, Anglo-Sax. 252. 2 i Thorpe, 8, 24, 30. 
 
 3 1 O'Curry, 201 ^ Anct. Laws, Eng-. 1(16. ^ Bntt. i. c. 7. 
 
 •i 1 Rich. tl. c. 7. 7 1 Rym Foed. p. 11. 
 
 ^ Exod. xxi. 28, 29 ; Gen. ix. 6. The Jews made beasts account- 
 able like moral agents, as to which Bolingbroke says he knows 
 nothing more absurd than this, except a custom at Athens, tliat the 
 weapons by which a murder was committed should be brought into 
 court, as if they, too, were liable to punishment, and the statue 
 which had killed a num by its fall was by a solemn sentence of that 
 wise people, the Thasii, cast into the sea. — 7 Bolinr/broJiC, Workt, 
 375. Selden and others, however, explain these laws as having no 
 object other than inculcating greater respect for human life. In 
 ancient Greece the judges at the Prytaneuni passed sentence on the 
 instrument of murder, when the perpetrator was unknown. — Smithy 
 
 C G 2
 
 388 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 And the laws of King Alfred provided, that, if at their com- 
 mon work one woodman should slay another unwittingly, 
 the tree was to be given to the kindred of the dead man. 
 
 Tire gravity with which the courts in course of time 
 discovered nice distinctions as to the respective culpa- 
 bility of inanimate things is now scarcely intelligible. 
 Britton says, where a man was killed by a fall, the thing 
 which caused the death was adjudged as a deodand to the 
 king. Thus if a man fell from a vessel not at sea, and was 
 killed, the vessel with all that was therein was a deodand ; 
 but if the vessel was under sail, the merchandize lying at 
 the bottom was not deemed to be the cause of death, and 
 so was not included in the deodand.^ If a cart and horse 
 killed a man, it was said to be the thing that moved, that 
 was deemed the deodand.^ Coke said the king consulted 
 all the judges, and a distinction between a ship in salt and 
 in fresh water was the result.^ Hale, without searching for 
 any principle in the matter, stated that the instrument of 
 death in misadventure was valued at a sum, because it 
 belonged to the king, who usually gave away the profits in 
 charity. He said, if a man was watering his horse and was 
 drowned, the horse was a deodand ; and if a man fell into 
 the water and was carried under the mill-wheel, the wheel 
 was a deodand, but not the mill. And probably for an 
 equally sound reason, if a weight of earth fell on a worker 
 in a mine, the weight of earth only, and not the whole mine, 
 was forfeited. In one case, where a man fell from a cart 
 under the wheel of a waggon as both met, two judges held, 
 that the cart and the waggon, and all the horses and the 
 loadinu' of both carts also were deodands.* And where a 
 man in ringing the church bell became caught and hanged, 
 the doubt was raised, but fortunately not settled, whether 
 the bell did not thereby become forfeited.^ 
 The mode in which the law of deodands, so obviously 
 
 Diet. EphetcB. And Draco made a law, that any inanimate thing 
 that caused the death of a human being should be cast out of the 
 country. — Pauf<. 6, 11 ; Said. Nicnn. ; Pint. Sol. Plato, also, in his 
 Laws directs that, if a beast of burden, or animal, cause the deatli 
 of any one, it is to be slain and cast out beyond the borders ; and so 
 if aniy lifeless object fulls on a man and kills him, it is to be cast 
 away beyond the border. — Pluto, De Leg. b. ix. 
 
 1 Britt. b. i. cc. 2, 8. '^ Year B. BU & 31 Ed. I. App. 524. 
 
 » 3 Inst. 58. •» 1 Salk. 220. ^ 1 Lev. 13G. 
 
 I 
 I
 
 oil. IV.] APPEAL OF MURDER. 389 
 
 founded in superstition, and so iitterly indefensible (as 
 Foster said 100 years ago), on any ground of reason, was 
 reduced to an absurdity and extinguished almost without 
 the aid of any act of parliament, is a notable instance of 
 the power which courts of justice have too seldom 
 exercised, when a law was one from which the common 
 sense of the times revolted. In a case where a waggon 
 and horses suddenly moved, and the driver fell o'l and was 
 crushed to death by one of the fore wheels, the coroner's 
 jury astutely found, that it was the wheel only which 
 caused the death ; and the Court of Queen's Bench held 
 that of course it could not think of interfering with the 
 solemn conclusion of the jury.^ And the wheel being of 
 small value, it was worth nobody's while to claim the sum 
 put on it. Another jury did the same thing ; ^ and this pre- 
 cedent of the wheel became at once a standard authority, 
 and the lords of manors, who coveted these perquisites, 
 ceased soon to push their righteous claims, being disgusted 
 at seeing these so unscrupulously frittered away by the 
 ingenious refinements of their modern judges. The law 
 was, however, not formally abolished till 1846.^ 
 
 Ancient remedy hy aiypeal of murder. — So late as the 
 times of Edw^ard I., if the king did not prosecute a 
 murderer, the relatives might do so, in which case an 
 appeal of murder was brought by the nearest in blood, or his 
 Avidow, or his foster-child, or even one of his homage ; but it 
 was in the option of the defendant, called the appellee, to 
 elect to defend himself by trial of iDattle, or to be tried by 
 a jury, unless the prosecutor was a woman, or was under 
 tlie age of fourteen, or above seventy, or in holy orders, or 
 could produce a record to aid his case. A field was 
 arranged, and the spectators were forbidden to stir or cry 
 aloud, so as to disturb the battle, which was fought 
 without armour, with head and hands and feet bare, each 
 
 ' R. V Rolfe, 2 Barn. 82, 111. 2 Fost. Cr. L. 267. 
 
 •* 9 & 10 Vic. c. 62. Blackstdne erroneously attributes the origin 
 of deodands to the blind days of popery, when these perquisites were 
 used as means of expiation for the souls of such as were snatched 
 away by sudden death. But the idea was much oUler than the pope, 
 as is shown by the Jewish, and Greek, and Gothic legislation on the 
 same subject. The idea may, no doubt, have been adroitly turned 
 to account in the middle ages.
 
 390 OF THE SECURITY OF THE PERSON. [en. n. 
 
 having a staff tipped with horn, and a target of four 
 corners.^ If the defendant could defend himself until the 
 stars could be seen in the firmament, he could then claim 
 judgment in his favour, and the appellor was committed 
 to prison. If, on the other hand, the defendant was van- 
 quished, he was drawn and hanged, or killed by some 
 painful death, his movable goods were forfeited to the 
 king, and his heirs disinherited. The appeal was in many 
 respects like an action, and could only be brought within 
 a year and day, and the appellor had ,to find two pledges 
 binding him to prosecute.' This mode of prosecuting a 
 murderer, even if the latter succeeded in battle, was not 
 conclusive, for the crown could still prosecute him; in 
 which case, as the crown could not fight, trial would re- 
 quire to be by jury.^ 
 
 The appeal of murder sprung from the blood avenger 
 and the ancient practice of the Germans, of awarding a fine 
 of cattle to the family of the murdered person,* just as 
 the ancient Brehon laws also had an eric fine of the same 
 kind,^ and the ancient Swedes followed the common 
 custom.*' A statute of Edward I. gave costs to the 
 appellee, if the appellor failed or falsely sued, who also 
 suffered a year's imprisonment besides.^ Holt, C. J., said 
 this was a noble remedy and a true badge of English 
 liberty. But Treby, C. J., and others, said it was an 
 odious and spiteful prosecution, deserving no encourage- 
 ment.^ The last instance of the remedy was in 1818, 
 when the King's Bench was obliged to confess it was still 
 the law of the land, that an appeal of murder might take 
 place after indictment, trial, and acquittal, the party thereby 
 seeking only pecuniary satisfaction, and taking the risk 
 
 ' By Magna Charta a point was gained by settling, that a woman 
 could not appeal ior death of any but her husband. — Mag. Chart. 
 c. 34. 
 
 2 Britt. b. i. c. 23, 24 ; Biact. 128-142 ; Fleta, 41-54. 
 
 3 It was one of the privileges of the citizens of London, conferred 
 by charter, not to be obliged to wage battle. — Ancient Laws, p. 217 ; 
 Liher Cii.sfum. 248, 252, 25i). The same privilege was claimed by 
 the citizens of Unco\n.—Kel ham's Britt. p. 153. And the burgesses 
 of Bury. — Cron. Joe. de Brak. p. 74. 
 
 * Tac. (Jerm. c. 21. '^ 4 Bl. Com. 313. « 1 Geijer, Hist. 
 
 84 (tr. Turner.) - ^ 13 Ed. I. c. 12 ; Vi. v Bambndt>e, 17 St. Tr. 
 
 462. , 8 11. w Towler, 12 Mod. 372 ; 1 L. Rayui. 373.
 
 oil. IV.] INDICTMENT FOR MURDER. 391 
 
 of staking- his life on tlie accusation.^ It was not 
 abolished by statute till 1819.^ 
 
 Murder now triable hy indictment.- — The complicated 
 laws relating to blood avengers, sanctuaries, murder fines, 
 and deodands, and trial by battle under an appeal of 
 murder, have now all but disappeared, and ended in an 
 ordinary trial of the accused party, when he has an oppor- 
 tunity, by witnesses and advocates, of establishing every 
 kind of explanation or mitigation of his offence, and if 
 possible of proving that he was not guilty at all. 
 
 The indictment and trial for 'murder. — The indictment 
 lor murder used formerly to describe with great minuteness 
 the manner in which and the means by which the death 
 was caused, and the exact part of the body attacked, the 
 length, and breadth, and depth of the wound, and of the 
 instrument used in wounding, and even the value of the 
 weapon used. But now the essential parts of an indict- 
 ment are reduced to the simple facts of time and place, 
 and names of persons, and the allegation that A maliciously 
 murdered B.^ This being the general allegation, all the 
 details of the crime are merely matters of evidence, which 
 are brought out at the time of the trial. The general rule 
 at common law is, tliat a trial for murder must take place 
 in the county within which the blow and the death 
 occurred. If the death took place in a different county 
 irom that iu which the blow M'as given, then the trial 
 might take place in either county.* And of late there are 
 exceptions created by statute to the necessity of trial in 
 the same county.^ Every indictment should describe the 
 name of the person killed, for certainty should be exacted 
 in all that concerns so serious an accusation ; but if the 
 
 ' Ashford v Thornton, 1 B. & Aid. 405. 2 59 Geo. III. c. 46. 
 
 3 " In any indictment for nuirder, or fur being an accessory thereto, 
 it is not now necessary to get forth the manner in which, or the 
 means by which the death of the deceased was caused, but it shall 
 be sufficient to charge, that the defendant did feloniously, wilfully. 
 and of his malice aiorethought, kill and murder the deceased, and in 
 any indictment against an accessory to tlie murder, it shall be suffi- 
 cient to charge the principal with the murder, and then to charge the 
 defendant as an accessory in the usual manner." — 24 & 25 Vic. c. 
 100, § 6. 47 Geo. IV. c. G4, § 12. 
 
 *> By 2 & 3 Ed. VI. c. 24, § 2, (repealed), the trial was to be in the 
 county where the death happened.
 
 392 OF THE SECURITY OF THE PERSON. [cH. iv. 
 
 name is unknown, it is enough that he be described as 
 "a person whose name is to the jurors unknown." And this 
 kind of objection, though once treated with great favour, 
 is no longer encouraged, for liberal powers of amendment 
 may under the statutes be exercised by the judge.^ 
 
 If an indictment for murder be laid before the grand 
 jury, and they think it is a case of manslaughter only, the 
 course is to present a separate bill, charging manslaughter 
 only.^ If there be an indictment for murder or maii- 
 slaughter, and a coroner's inquisition for manslaughter or 
 murder against the same person at the same sessions of 
 gaol delivery, the practice is to arraign and try the prisoner 
 on both, in order to avoid the plea of autrefois acquit or 
 convict, and to endorse his acquittal or conviction upon 
 both presentments.^ Whenever a man has been acquitted 
 generally upon an indictment for murder, he may plead 
 autrefois acquit to an indictment for manslaughter of the 
 same person, and vice versd, for if the facts are the same 
 the inquiry and verdict are conclusive.* And for the same 
 reason a conviction on one indictment may be pleaded as 
 autrefois convict to a second for the same facts.^ Where 
 a defendant is indicted for murder, the jury may think, that, 
 owing to the want of evidence of malice, the offence 
 amounts only to manslaughter, in which case they may 
 find the defendant guilty of manslaughter.*^ And if two 
 are indicted for murder, one may be acquitted and the 
 other may be found guilty of aiding and abetting.'' If 
 two are indicted, each for the murder, and each as an aider 
 and abettor alternatively, the jury may find both guilty 
 generally, if uncertain which of them acted as principal.^ In 
 some cases there may be no alternative between convicting 
 ft)r murder and finding a verdict of acquittal according as 
 certain evidence is or is not worthy of credit.'' And it is 
 not competent for a person charged with murder to be 
 found guilty of assault on\j}^ But the jury may find the 
 
 ' 14 & 15 Vic. c. 100, § 1 ; K V Welton, 9 Cox, C. C. 297. 
 ■' R. V Bubb, 4 Cox, C. C. 455. 3 i p]ast, P. C. c. 5, § 134 ; R. r 
 
 Smith, 8 C. & P. 160. 4 R_ ^ Holcroft, 4 Co. 46 b ; 2 Hale, 246. 
 
 ^' R. V Wi^-ges, 4 Co. 45 ; 2 Hale, 246, 252; Fost. 329. o 2 Hawk, 
 c. 47, § 5. 7 K. y Taylor, Leach, 360. « R. v Downing, 
 
 Den. C. 52. 9 R. v Smith, Russ. Cr. 749. 10 14 & 15 vic. 
 
 c. 100, § 10.
 
 cii. IV.] SUICIDE AND MURDER. 393 
 
 prisoner guilty of the lesser offences of manslaughter, or 
 excusable homicide, or of an attempt to commit murder.^ 
 If the facts show excusable homicide, a verdict of acquittal 
 is entered. 
 
 The sentence on murderers. — Every person now convicted 
 of murder shall suffer death as a felon.^ And the judge is 
 imperatively required to pronounce such sentence on the 
 conviction.^ The mode in which the sentence is carried 
 out is by hanging, and though formerly this was done in 
 public by way of making the example memorable, it was 
 found that the occasion was perverted into a spectacle too 
 demoralising for any possible good to be gathered from 
 mere publicity. And in 1867 it was at last enacted, that 
 judgment of death should be executed within the walls of 
 a prison, in presence of the sheriff and a few officials only."* 
 The usual rule is, that the officer having the custody of the 
 criminal is bound to execute him. In case of doubt, the 
 Queen's Bench Division has jurisdiction to direct which of 
 several ministerial officers shall carry out the sentence.^ 
 The body of every person executed for murder is now to be 
 buried within the precincts of the prison in which he shall 
 have been last confined.'' 
 
 Suicide, how far included in murder. — Murder, as already 
 seen, is the killing of one human being by another, and it is 
 natural and inevitable that all laws should have something 
 important to prescribe for this situation ; for unless each 
 individual is protected as well as laws can protect him 
 against aU interference, pain, injury, or death at the hands 
 of others, life and all its pursuits would be a constant 
 
 ' 1 Hale, 449 ; 2 Hale, 302 ; Co. Lit. 282a. 2 24 & 25 Vic. 
 
 C-. 100, § 1. 3 Ibid. § 2. 
 
 ^ 31 & 32 Vic. c. 24, § 23. According to Britton, if a prisoner was 
 found guilty of murder he was sentenced to death, and he forfeited 
 his movable goods to the crown, and a year's use of the inheritance, 
 and the heirs were incapable of succeeding to the estate, and the 
 widow had no dower. — Britt. i. 6, 3. The consequences of sentence 
 of death on the property of the prisoner belong to the subject of 
 " Security of Property." 
 
 5 R. V Garside, 2 A. & E. 266 ; 4 N. & M. 333 ; R. v Antrobus, 
 2 A. & E. 788. 
 
 <5 24 & 25 Vic. c. 100, § 3. Before burial the body used to be hurig 
 in chains near the place of the crime. As to this, me pout, Ch. viii. 
 " Punishment."
 
 394 OF THE SECUKITY OF THE PEKSON. [cH. iv. 
 
 strussle and warfare. But a new idea altocjether arises 
 when one reflects that each individual, being also the master 
 of his own life, can do acts which injure, wound, and kill his 
 own body as well as the bodies of others. This is a later 
 problem, which is developed only after some power of 
 reflection and sense of refinement have come over society. 
 Savages are all but incapable of conceiving the very notion 
 of destroying their own lives ; suicide is too intricate and 
 abstract a speculation to disquiet them ;^ and when they 
 begin at last to see a difficulty, they are much at a loss 
 what to do or what to prescribe in a matter which seems 
 to be so much beyond all the laws and commandments of 
 man. What punishment indeed is possible, seeing that 
 the person to be punished is already beyond the reach of 
 punishment ; and if he is not to be punished, who then is 
 the person to be punished in his place — to what extent, and 
 under what circumstances and conditions, can this be justly 
 done ? These are difficulties which no legislature has been 
 able to overcome, except after long experience and reflection. 
 It is the necessary effect of good laws to create a general 
 sense of security, which, like the atmosphere each member 
 of society breathes and lives upon, dilates his faculties and 
 enjoyments without almost the trouble of thinking. And 
 the more highly the lives of others are valued, one's own 
 life, as a separable possession, is insensibly raised in value by 
 a species of refiection and mutual reaction. Nevertheless 
 it is easy to see, that no human laws can possibly do mucli 
 to restrain suicide. If all that the law can do for the indi- 
 vidual is so little attractive, that he has already made up his 
 mind that life is not worth having, there is scarcely any- 
 thing that the law can say further on the subject. It is 
 obviously only by moral and religious considerations that 
 the dignity of life can be maintained, vindicated, and en- 
 hanced, and no tests that the law can supply have more 
 than an insignificant effect on the view taken of his own life 
 by each human mind. Hence the perplexity and confessed 
 inability of any municipal law to confront and overpower 
 a tendency which can so easily elude it, and can so seldom 
 be bafHed. There is no binding one over to keep the peace 
 against himself. As Beccaria observed, suicide is a crime 
 which seems not to admit of punishment, properly speaking, 
 ^ 2 Grey's Australia, 248.
 
 cii. IV.] ANCIENT LAWS OF SUICIDE. SH.'j 
 
 for it cannot be inflicted but on the innocent or upon an 
 insensible dead body. It is idle to scourge a statue. 
 Mankind love life too well to admit of suicide being common 
 from its unavoidable impunity.^ 
 
 Perplexity of the ancients as to suicide. — The ancients 
 were not unanimous in the view they took of the lawful- 
 ness of suicide. Plato thought it justifiable wheu one was 
 overwhelmed by calamity or poverty.^ Aristotle con- 
 demned it as an injury to the state.^ The Gymnosophists, 
 on reaching a certain age, or when threatened with disease, 
 burnt themselves, after inviting their friends to a feast.* 
 Cicero asserted the doctrine of Pythagoras, that it was un- 
 worthy to abandon one's post and leave life, without the order 
 of Providence, yet praised the suicide of Cato, who resolved 
 to die rather than look on the face of a tyrant.^ Virgil, 
 Caesar, Ovid, Seneca, Plotinus and Porphyry seemed to think 
 suicide a shrinking from duty. But there was considerable 
 vagueness in the view held. The Stoics generally viewed 
 suicide as one of the ways of displaying their indifference 
 to life and its troubles. The Stoical type of moral ex- 
 cellence, which was that aimed at by the educated classes 
 of Eome, taught that death was not to be feared, and that 
 rewards or punishments in the present or future life were 
 not the true motives of virtue. Whatever views in the 
 abstract may have been held, many distinguished ancients 
 committed suicide.*^ But no writer on this subject has 
 
 1 Beccaria, c. 32. A great writer lias said, tliat though tliere aie 
 many crimes of a dccperdye than suicide, there is uo other by which 
 men appear so formally to renounce tlie protection ot God. — MarLde 
 Stael, lieffex. sur le Suicide. St. Cyran, one of the founders of the Port 
 Eoyal, in 1608, wrote a treatise, vindicating the right of a man to 
 kill himself for the good of his prince, of liis country, or of his parents. 
 —Volt. Becc, c. 19. 
 
 '^ Laws, HI), ix. ^ Ethics, v, 
 
 * Q. Curt. b. viii. c. 9. Tlie learned have remarked that there is 
 nothing expressly stated in the law of Moses as to suicide, and that it 
 has not generally been deemed to be included in the prohibitions of the 
 sixth commandment. — Michaelis, Com. § 272. But if the learned have 
 so settled this point, it onl}^ shows the absurdity of interpreting divine 
 laws in the way that courts of law would interpret most nmnicipal 
 laws ; for the subject matter, the object and effect of the two kinds 
 of laws differ toto ado. — See ante, p. ll?j. 
 
 5 De Senect. c. 20; Tuscul. i. ; De Offic. b. i. c. 3L 
 
 ^ One Hegesius, mentioned by Cicero, was called the orator of 
 death, from the persuasive manner in which he painted this final
 
 396 OF THE SECURITY OF THE PERSON. \rH. iv. 
 
 surpassed Marcus Antoninus, who says, "it becomes a 
 man of wisdom neither to be inconsiderate, impetuous, 
 or ostentatiously contemptuous about death, but to 
 await the season of it as of one of the operations of 
 nature." ^ 
 
 Infiuence of Christianity on views of suicide. — While 
 suicide was in many instances applauded, and in a few 
 instances faintly reproved in the civilisations of Greece and 
 Eome, most of the barbarous tribes from Denmark to 
 Spain also habitually followed the practice, until the 
 influence of Christianity gradually superseded this pagan 
 view,- and vindicated the sacredness of life.^ And it has 
 been said that, under the empire of Catholicism, seconded 
 as it was in this respect by Mohammedanism, suicide 
 during many centuries almost absolutely ceased in all the 
 civilised, active, and progressive part of mankind.^ 
 
 relief from care, and many voluntarily rushed to the tomb with en- 
 thusiasm. — Tusc. Quaes, lib. i. ; 2 Lech/, Hist. Mor. Cocceius 
 Nerva, a prosperous lawyer, is said to have committed suicide owini;- 
 to the sad state of pubhc affairs in the republic. — Tac. Ann. b. vi. 
 c. 29. 
 
 ' M. Anton, b. ix. c. 3. The ancients record with what indiffer- 
 ence the Indians of their time ascended a funeral pile and burnt 
 themselves to death, it being, as they represented, an eastern custom. 
 Calanus did so in presence of the whole army of Alexander the 
 Great. And a venerable Brahmin in an embassy from Porus to 
 Augustus did the same thing at Athens. — 2 Maurice, Inch Ant. 107. 
 The Siamese, indeed, considered it a laudable act of piety. — 3 Univ. 
 Mod. Hist. 336. In India, so eager were men to join in drawing the 
 car of Juggernaut, and so confident if they could only pull a 
 rope, they would go to heaven, that in their excitement they fell 
 beneath the wheels, not unwillingly. — Clarke, Tun Relig. 134. 
 
 The code of Ayeeii Akberry enumerated five modes of meritorious 
 suicide. These were starvation — burying oneself in snow — abandon- 
 ing oneself to alligators in the Ganges — cutting one's throat at 
 Allahabad — and covering oneself with cow-dung and setting fire 
 to the heap. — 2 Mavrice, Lid. Ant. 47. It has been said that in 
 China, at one time, a man would kill himself on the doorstep of 
 one who had affronted him as a mode of vengeance. — Clarke, Ten 
 Relig. 22. 
 
 '^ 2 Lecky, Hist. Mor. 56. 
 
 •* After the Reformation many unfortunate women accused of 
 witchcraft resorted to suicide to avoid the malignant persecutions 
 wliich dogged them.— 2 Lecky, Hist. Mor. 38. Epidemics of suicide 
 iiavc also occurrcid in the middle ages. — Hecker, Epid. Mid. Ages, 
 121. Montaigne says there was at one time kept at Marseilles a
 
 OH. IV.] CHANGE IN LAW OF SUICIDE. 30^ 
 
 Capital punishment hy way of suicide. — Suicide has been 
 in some countries the form in which capital punishment 
 has been carried out, though it is a cruel and barbarous 
 form. Socrates, when condemned for blasphemy, was 
 sentenced to drink poison.^ 
 
 Gladiatorial contests a kind of suicide. — Another species 
 of compulsory suicide was that of the gladiatorial games at 
 Eonie. These were, it is supposed, originated to supply 
 the practice of human sacrifices to appease the manes of 
 the dead, and were defended in later times as a means of 
 sustaining the military spirit by the constant spectacle of 
 courageous death,^ and continued for centuries almost 
 without a protest.^ 
 
 The Fathers took up higli ground on tlie subject of these 
 brutal pastimes, and denounced them with unsparing 
 
 poison prepared out of hemlock at the pubhc charge, for the use of those 
 who wished to commit suicide, first giving an account to the senate 
 of six hundred, of the reasons for committing the act. — Montaigne, 
 h. ii. c. 3. 
 
 1 In Japan, when an official had violated the law, he was allowed 
 and encouraged to rip up his own body, and make an end of himself. 
 By this act he saved his property from forfeiture, and his family 
 from death along with him. — 1 Perry's Japan, 17, 
 
 The ancient Ethiopians also made their malefactors commit suicide. 
 — Diod. Sic. ; Straho. They had also a singular law, that their king- 
 should despatch himself whenever he received a message from the 
 priests, tliat the gods required it for the good of the country. — 
 Diod. Sic. 
 
 2 Cic. Tusc. hb. ii. ; Lecky, Hist. Mor. 
 
 3 Human sacrifices were not finally abolished, near Rome, till tli<> 
 time of Gratian. — Lact. Inst. b. i. c. 21. The gladiatorial duels 
 began B.C. 2(14. — Valer. Max. ii. 4, § 7. There were amphitheatres 
 erected in all the large towns, and the Colosseum held no less than 
 80,000 spectators. Agrippa built a magnificent theatre at Berytus, 
 where, on one occasion, 14,000 condemned criminals were ordered to 
 fight, and they fought so well that not one survived. — Joseph. Ant. 
 b. xix. c. 7. Julius CiPsar once amused the people with 320 couples. 
 — Dion Cass. b. Ixviii. Augustus, however, ordered that not more 
 than 120 men should fight on a single occasion, and that no prc-etor 
 should give more than two spectacles in a single year. — Dion Cass, 
 h. xlviii. Tiie iiillrence of these bloody encounters pervaded the 
 whole round of Roman life. — Epict. Each. 32, § 2 ; Arrian, iii. 15 ; 
 2 Lecky, Hist. Mor. Philosophers like Seneca, Plutarch, and 
 Marcus Antoninus, condemned these demoralising and brutal scenes, 
 though Cicero held that, when the gladiators were guilty men, no 
 better discipline against suffering and death can be presented to the 
 €ye. — Tusc. Q. ii. 17.
 
 398 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 vigour as nothing less than murders ; and they were 
 finally suppressed in the fifth century.^ 
 
 Suicide liow far a crime, at common lavj. — It seems to 
 have been a doctrine of our common law at an early date, 
 that murder included suicide, and that the latter act was 
 ipso facto a felony.^ Hence forfeiture of goo.ds and 
 chattels was a legal consequence of the act, and as the 
 suicide was his own executioner, the forfeiture accrued on 
 the act, since conviction was rendered impossible. But 
 though trial was superseded, an inquisition by the coroner 
 was held on the body. And yet this doctrine, that muYder 
 included suicide, tends to inconsistencies, and cannot be 
 logically acted on.^ It is self-evident, however, that life 
 is not a species of property, and that the law could never 
 vindicate suicide on the plea, that one is thereby only 
 destroying at pleasure what is one's own. It is in every 
 view a wrongful act, or at least one without legal excuse. 
 Hence when one person asks another to kill him, the law 
 views it as nothing less than a murder, for one had no 
 right to give such a command, and the other ought to 
 have known the same, and ought not to have acted upon 
 it. In such an event he that is killed is deemed no 
 suicide, but the Idller is deemed a murderer.'* 
 
 Again, two persons sometimes agree to kill each other, 
 and one may in the result be killed and the other not. In 
 this event it may become necessary to ascertain in what 
 position they stand, for it may often be difficult to decide 
 
 1 It was not till A.D. 365, immediately after tlie convocation of the 
 Council of Nice, that the first Christian emperor issued the first edict in 
 the Roman empire condemnator}^ of the gladiatorial games. — Cod. 
 Theod. lib. xv. tit. 12, lex 1 ; 2 Leek. Hint Mor. 37. Their suppression 
 was not effected in the metropolis of the empire till nearl}^ ninety j^ears 
 after Christianity had been the state religion. — 2 Leek. Hist. Mor. 39. 
 'J'he last gladiatorial show was celebrated at Rome under Honorius, 
 A.D. 404, in lionour of the trium])h of Stilicho, when an Asiatic 
 monk named Telemachus rushed into the amphitheatre and attempted 
 to part the combatants. He perished beneath a shower of stones 
 Hung by the angry spectators, but his death led to the final abolition 
 of the games. — '1 lieodoret. v. 2G. Combats of men with wild beasts 
 continued nnich later, but were finally condenmed at the end of the 
 seventh century by the Council of Trullo. — 3 Milman, Hint, of 
 Early Ch. 343 ; 2 Leeky, Hist. Mor. 40. 
 
 - i Hale, P. C. 412. ^ r. „ Burgess, 1 L. & C. 258. 
 
 " 1 Hawk. P. C. c. 27. § (i ; K. v Russell, Ry. & M. 35G.
 
 en. IV.] ANCIENT PUNISHMENT OF SUICIDE. 399 
 
 whether one who is killed under such circumstances 
 commits suicide, or is murdered by his confederate. This 
 (question will mainly turn on whether the person killed by 
 his own order and contrivance contributed in a material 
 degree to his own death, or whether the material part was 
 contributed by his partner.^ Each is considered the 
 murderer of the other, and if the purpose is only partly 
 executed, tliis is the footing on which the mutual guilt is 
 judged.^ 
 
 Ancient punishment of suicide. — Plato, though recog- 
 nising some palliations for suicide, directed that he, who 
 commits suicide from indolence or cowardice, shall be 
 buried ingloriously, and laid alone in an uncultivated 
 place, with no column or name to mark where he lies.^ 
 And Solon, though denying burial to the body, ordered 
 the hand to be cut off and buried by itself.'* The Eoman 
 law did not in any way visit the consequences of suicide 
 on the property or person of the dead. But Domitian 
 ordained, that if an accused person committed suicide, he 
 should be deemed to be condemned.^ 
 
 An able writer says, that the old pagan legislation on 
 suicide remained unaltered in the Theodosian and Justinian 
 codes, but a Council of Aries in the fifth century having pro- 
 nounced suicide to be the effect of diabolical inspiration, a 
 (Jouncil of Bragnes in the following century ordained that 
 no religious rites should be celebrated at the tomb of the 
 culprit, and that no masses should be said for his soul; 
 and these provisions, which were repeated by later councils, 
 were gradually introduced into the laws of the barbarians 
 and of Charlemagne. St. Lewis originated the custom of 
 confiscating the property of the dead man, and the corpse 
 was soon subjected to gross and various outrages. In 
 
 • 1 Hawk. P. a c. 27, § 6 ; Keilw. 136 ; Moor, 754. 2 r. „ 
 
 Alison, 8 C. & P. 418 ; R. v Dyson, R. & Ry. 523. 3 piat. De 
 Leg. b. ix. 4 ^sch. Ctes. 636. 
 
 ■^ Gibbon, Decl. and F. c. 44, Josephus says that, in some nations 
 tlie right hand of the suicide was amputated, and that in Jud^a the 
 suicide was only buried after sunset. — De Bell. Jud. iii.8. In Japan 
 also the suicide was buried hke a dog, and those who attempted to 
 commit the crime were exposed three days to disgrace, and then 
 made hegguv?..— Dickson' s Japan, 339. The Indians of Southern 
 America refused mourning for a suicide, and buried the dead body 
 like that of a coward. — Jones., S. Ind. Ant. 113.
 
 400 OF THE SECURITY OF THE PERSON. [cii. iv. 
 
 some countries it conld only be removed from the house 
 through a perforation specially made for the occasion in 
 the wall ; it was dragged upon a hurdle through the 
 streets, hung up with the head downwards, and at last 
 thrown into the public sewer, or burnt, or buried in the 
 sand below high -water mark, or transfixed by a stake on 
 the public higliway.^ 
 
 Funishment of suicide in England. — The mode of inter- 
 ment of a suicide in England used for a long time to be 
 according to the rubric, that is to say, without the burial 
 service being read over the grave. And it is said he was 
 buried in a public cross-road, with a stake driven through 
 his body.- This burial was in 1824 directed to be discon- 
 tinued, and instead, the felo de se is to be buried in the 
 parish churchyard privately, between the hours of nine 
 and twelve at night.^ 
 
 Hale seemed to justify the posthumous punishment of 
 suicide by saying, that it was a sin against God, and the 
 sovereign had an interest in the life. And Blackstone, in 
 the same vein, said, the law of England was wise and 
 religious, and such a crime was an invasion of the 
 prerogative of the Almighty. Though the studied degra- 
 dation to the senseless body was repealed in 1824, the 
 forfeiture of the suicide's personal estate continued to be 
 the law till it was repealed in 1870.^ There is now, there- 
 fore, no longer the strong motive whicli formerly impelled 
 the juries to find that the suicide was committed while 
 the person was of unsound mind, for nothing now turns 
 on that charitable perjury, unless, indeed, by reason of 
 some contract between the parties it has been otherwise 
 agreed.^ 
 
 1 2 Lecky, Hist. Mor. 53. The early Cliurch punished with ex- 
 communication all who laid violent hands on themselves, who were 
 known by the conni.on name of self-murderers. Such persons 
 were denied a Christian burial and the benefit of all memorial in the 
 Church's prayers after death. — Binff. Chr. Antiq. b. xvi. c. 10. 
 
 2 4 Bl. Com. 190. Sir J. Mackintosli said, there was no authority 
 in the books except Blackstone's for this treatment of the body.— 
 9 Pari. Deb. (2nd.) 414. It is mentioned, in 17 St. Tr. 56, that the 
 stake was driven through the suicide's body. 
 
 '■' 4 Geo. IV. c. 52. " 33 & 34 Vic. c. 23, § 1. 
 
 '' Mackintosh observed, that the barbarity of punishing the relatives 
 of a suicide was enhanced when there was neither trial nor defence.
 
 CH. IV.] THE OFFICE OF CORONER. 401 
 
 Other legal consequences of suicide. — Whatever other con- 
 sequences flow from the fact of suicide, they flow now, not 
 from the common or statute law, but merely from some 
 collateral contract. In contracts for life insurance and 
 similar contracts which rest on the basis of the natural 
 desire of life, it is obvious that any capricious destruction 
 of life by the party assured will be a violation of the 
 bargain, and will discharge the opposite party, who engaged 
 to pay certain moneys only in the event of natural or acci- 
 dental death, under neither of which categories will suicide 
 come. There is no hardship or injustice therefore now re- 
 sulting to the friends or relatives of a suicide, other than such 
 as result from the breach of some contract which the deceased 
 had engaged, but has failed, to observe. Such cases occur 
 most frequently in reference to insurances of life. When an 
 insured person commits suicide, the rule is, that if the act is 
 done in a state of insanity, the life assurance is not void,^ 
 unless an express condition to that effect is inserted in the 
 policy, which is often the case.^ 
 
 Discovery of murderer and function of coroner. — The law 
 of murder is not complete, unless in addition to the ordinary 
 modes of punishing the crime, the case be also contemplated 
 of the murderer being unknown. It would be a singular 
 omission, if any municipal law failed to give some assistance 
 in cases where a murder has obviously been perpetrated, 
 but owing to its secrecy, no trace of the criminal is extant, 
 and thereby all the benefit of the elaborate machinery, 
 matured by centuries of experience, for executing justice 
 has become lost in any one instance. Much of the efficacy 
 of modes of punishment depends on the certainty with 
 which they can be brought to bear. But when a crime of 
 this kind is committed, it is, according to the theory of the 
 law, the interest and duty of each and all to give some help 
 towards vindicating its infraction. In this country the pro- 
 secution of crime is left to the natural revenge, or, as some 
 M^ould call it, the natural resentment, of those individuals 
 
 9 Pari. Deb. (2nd) 410. He also told the House of Commons such 
 punishment was an act of malignant and brutal folly, useless to the 
 dead, torture to the living. — Ibid. 414. 
 
 ' Horn V Anglo- Australian Co., 30 L. J. Ch. 511 ; Sohcitors Co. » 
 Lamb, 2 De G. J. & S. 261. ^ White v British Empire Co. L. K. 
 7 Eq. 394. 
 
 VOL. I. D D
 
 402 OF THE SECURITY OF THE PERSON. [cu. iv. 
 
 who feel the loss most keenly, and who, on that account, are 
 relied upon to bear the burden of working out and seeing 
 applied the appropriate punishment. This is a singular 
 anomaly, and reflects little credit on those who affect to 
 see an importance in separating criminal from civil remedies. 
 The ground put forward for this distinction has always been, 
 that the one is pursued in the interest and on behalf of the 
 public at large, and the other for the sole benefit of the 
 individual, and yet notwithstanding so plausible a theory, 
 there has as yet been no attempt to carry it out logically. 
 Any individual may prosecute an offender, but he does it 
 at his own expense and risk, subject to this, that in the 
 more grievous cases some of his expenditure is refunded 
 out of a common purse, and even this last qualification is 
 of comparatively modern origin. As this lamentable defect 
 leads to many crimes going unpunished, it was all but 
 inevitable that somehow assistance should be given in 
 tracking out unknown murderers. Owing to rules which 
 will afterwards be stated, the machinery of prosecution for 
 crime cannot be put in motion at all, until some definite 
 person is fixed on, against whom the crime can be charged. 
 If no such individual is forthcoming, justice stands still. 
 But fortunately, while the want of a public prosecutor has 
 existed up to the present time, some of the shortcoming has 
 been supplied by the services of a coroner, whose business 
 it is to find out in cases of sudden and unnatural death, 
 who is the person, if any, that is to blame. To help in this 
 inquiry, he is allowed to call to his aid jurors and witnesses, 
 and the beginning and end of his function is to fix on some 
 definite individual or individuals against whom this charge 
 of crime can be made, and so the appropriate punishment 
 invoked and put in motion. Other than this, he has no clear 
 object or place in the machinery of the law ; and when a 
 better and safer method of eking out a defective criminal 
 procedure, and of finding out who, if any, is the criminal 
 to be charged with murder or manslaughter, is discovered, 
 then, and not before, he may cease to be. So long as a 
 coroner exists, a description of his functions and procedure 
 requires to be noticed at this stage, for these are at present 
 a necessary part of the law of murder, and part of the 
 security of the person. 
 
 The coroner was an officer of the crown, who is noticed
 
 <'ji. IV.] CORONER'S DISTRICT. 403 
 
 at the time of King Alfred, Henry IL, Richard I., and also 
 in Magna Charta/ Before Magna Charta he used to hold 
 pleas of the crown, and try offenders ; but his authority was 
 by that statute restricted chiefly to an inquiry into violent and 
 untimely deaths. The .Lord Chief Justice of the Queen's 
 Bench Division was by virtue of his office supreme coroner 
 over all England, and the other judges of that court were 
 also sovereign coroners ; and each of them may still act if 
 he pleases.^ Tliere are also a few places in England where 
 coroners are appointed by charter or immemorial usage in 
 a manner different from the rest of the kingdom. A grant 
 of the crown is in some cases presumed as the origin of 
 such a right ;^ and the statute 28 Edward III., c. 6, which 
 confirmed to each county the power of electing its coroner 
 recognised these exemptions.'^ The Lord High Admiral 
 also appoints coroners, having jurisdiction for the high 
 seas, and a concurrent j urisdiction with the county coroners 
 over the shore and mouths of rivers up to the first bridge.^ 
 When the tide is in, the admiralty coroner has jurisdiction 
 up to high water mark, and when the tide is out the county 
 coroner has jurisdiction down to low water mark.^ The 
 
 1 Bac. on Gov. 66 ; Dugd. Mon. 171 ; 2 Inst. 30 ; 4 Inst. 271 ; 
 Wilkins, Leg. Angl.-Sax. 337 ; Umfrev. Lex Cor. xx. ; Spelm. 
 Vicecoin. ; Mirr. c. 1, § 3 ; Lamb. Eiren. ; Magna Chart, c. 24. 
 
 2 4 Inst. 73 ; 4 Rep. 57b. » Co. Litt. 114a ; 2 Hawk. c. 9, 
 5 11 ; 9 Rep. 29b. 
 
 4 See also 7 «& 8 Vic. c. 92, § 29 ; 23 & 24 Vic. c. 116, § 9. The 
 Lord Mayor of London is, by charter, coroner of London, and in the 
 Cinque Ports, the Chapter of Westminster, the Isle of Ely, and the 
 Stannaries of Cornwall, there are coroners appointed in an ex- 
 ceptional manner. — 2 Hale, P. C. 53. In the circuit of twelve miles 
 round the residence of the king's courts a coroner of the Verge used 
 to be appointed by the king's letter patent, and latterly by the 
 stewards of the household, though the coimty coroner had also a con- 
 current jurisdiction given to him by a statute of Edward I. — 5 Ed. II. 
 c. 27 ; 13 Rich. II. c. 3 ; 4 Rep. 46b. ; Britt. c. 1, § 6 ; 2 Inst. 550: 
 2 Hale, P. C, 54 ; 28 Ed. I. c. 3 ; 33 Hen. VIII. c. 12. It was held, 
 however, in interpreting this last statute that both the coroner of the 
 verge and the coroner of the county must sit together, neither having 
 jurisdiction without the other. — Hamlin's Case, 2 Leon. 160 ; 4 Rep. 
 45b, 46b ; 2 Inst. 550 ; 2 Hale, P. C. 55 ; 3 Inst. 134. But within 
 the precincts of the palace the coroner of the queen's household 
 alone can hold the inquisition. — 33 Hen. VIII. c. 12, § .3. 
 
 5 15 Rich. II. c. 3 ; 2 Hale, P. C. 54, 55. « 3 jn^t. 113 ; 5 Rep. 
 107. 
 
 D D 2
 
 404 OF THE SECURITY OF THE PERSON. [oh. iv. 
 
 county coroner had also at common law jurisdiction in 
 arms of the sea lying within the body of the county so 
 situated, that one shore can be seen from the other.^ But 
 a statute also conferred jurisdiction on the admiralty 
 coroner, when death occurs in great ships in the main 
 stream.2 j^ these cases of concurrent jurisdiction, the 
 coroner, who first begins the inquiry, absorbs the en- 
 tire jurisdiction in such matter. And wherever the body 
 is found, the jurisdiction attaches, though the blow or 
 wound may have been given out of the particular juris- 
 diction.^ 
 
 By whom coroners are appointed or elected. — The coroners 
 for the county were directed by the Statute of Westminster 
 first to be chosen by the freeholders, and usage, controlled 
 by the Lord Chancellor, regulates the number appointed.* 
 And detached parts of counties are now deemed for the 
 purposes of coroners to be part of the counties with which 
 they have the longest common boundary.^ In boroughs 
 which have a separate court of quarter sessions, the town 
 council may always appoint a fit person, not being an 
 alderman or councillor, to act as coroner of the borough.^ 
 A coroner for the county is elected by the freeholders on a 
 petition by them to that effect, for which purpose, on the 
 death, or removal, or ouster of a coroner, a writ is issued to 
 the sheriff, called a writ de coronatore eligendo, under which 
 he appoints the time and place of election, and this writ 
 cannot be stayed except on the ground of fraud in obtain- 
 iuCT it.'' And a county has been authorised to be divided 
 into districts, so that each coroner may confine his duties 
 
 1 2 Hale, P. C. 15, 54 ; 2 Str. 1097 ; 4 Inst. 140 ; And. 231. 
 3 15 Rich. 11. c. 3. ' 24 & 25 Vic. c. 100, § 10. 
 
 * 3 Ed. I., c. 10 ; 2 Inst, 175 ; 2 Hale, P. C. 55. Local statutes 
 governed to some extent until recently the county of Chester. — 3 
 Vic. c. 87 (loc.) ; 7 & 8 Vic. c. 92 ; 23 & 24 Vic. c. 116, § 7. And the 
 county of Durham.— 6 & 7 Wil. IV. c. 19 ; 1 Vic. c. 64. And in 
 Wales two coroners are appointed for each county. — 33 Hen. VIII. 
 c. 13 ; 34 & 35 Hen. VIII. c. 26. 
 
 5 fi Vic. c. 12, § 2 ; 7 & 8 Vic. c. 92, § 23. 
 
 ^ His expenses are paid out of tlio borough fund, and he must 
 render full accounts.— 1 Vict. c. 68, § 3. He is substantially paid 
 by toes.— 5 & 6 Wil. IV. c. 76, § 62 ; R. v Grinishaw, 10 Q. B. 747. 
 
 7 Re Coroners of Salop, 1 Mac. & U. 377 ; Re Hemel Hampstead, , 
 6 De G., M. & G. 228.
 
 CH. IV.] CORONER, HOW APPOINTED. 4a''. 
 
 to one of the districts and be elected by the freeholders 
 Avithin such district.^ 
 
 At first only knights were chosen to the office of coroner, 
 but a statute of Edward III. defined the qualification to be 
 one " of the most meet and lawful people." - A statute of 
 the same reign enacted, that the person chosen should have 
 land in fee within the county, it being considered that he 
 should have some material guarantee to answer any fines 
 that might be imposed upon him.^ This reason is, how- 
 ever, vague and indeterminate. The mode of proceeding 
 at the election is now set forth in recent statutes.^ The 
 polling is to continue for one day only.^ The electors 
 described by the statute of 28 Edward III. c. 6, have long 
 been construed to denote the whole freeholders, as those 
 only were the suitors at the old county courts.^ All 
 persons, therefore, who have a freehold interest in lands 
 within the district or county are entitled to vote.'^ If re- 
 quired by a candidate, each voter may be called on to take 
 an oath before voting that the freehold has not been granted 
 to him colourably, in order merely to qualify him to vote, 
 and any falsehood in this respect is a legal perjury.* 
 Should any dispute arise as to the correctness of the voting, 
 as a scrutiny is incident to all elections by vote, the 
 sheriff is bound on proper suggestion to grant such 
 scrutiny, otherwise he is liable to an action by the person 
 entitled.*^ When the candidate is declared duly elected, 
 he takes the oath in open court before the sheriff; ^^ and 
 the sheriff thereafter makes his return to the Court of 
 
 ' 7 & 8 Vic. c. 92 ; 2.3 & 24 Vic. c. IIG, § 7 ; R. v Lechmere 
 16 Q. B. 284 ; Ex p. Payne, 6 L. T., N. S. 536. 2 3 jjj i c. 10 ; 
 28 Ed. III. c. 6 ; 4 Inst. 271 ; 2 Hawk. P. C. c. 9, § 3. 3 14 Ed. III. 
 St 1, c. 8 ; Fitz. N. B. 163 ; 1 Bl. Com. 347. -i 7 & 8 Vic. c. 92 ; 
 23 & 24 Vic. c. 116. & Ibid. § 2. 62 Hawk. P. C. c. 9, S 10 : 
 2 Stubbs, C. H. 227. 
 
 7 A statute, 58 Geo. III. c. 95, repealed by 7 & 8 Vic. 92, expressly 
 included equitable interests, but this enactment seemed unnecessary. 
 
 8 7 & 8 Vic. c. 02, §§ 1.3, 14. 
 
 9 Starling v Turner, 2 Lev. 50. The candidates have to bear 
 equally the sheriff's reasonable charges and expenses. — 7 & 8 Vic. 
 c. 92, § 16. 
 
 1" The writ directs this ; F. N. B. 1G3 ; 31 & 32 Vic. c. 72 ; 34 & 
 35 Vic. c. 48.
 
 406 OF THE SECURITY OF THE PERSON. [oh. iv. 
 
 Chancery, certifvincr the name of the new coroner, and if 
 he fail to do so he is liable to an action.^ 
 
 AutJwrity and duty of coroner. — In the time of Edward 
 I. the coroner was to inquire into the lands and goods of 
 the guilty person, and into the cases of rape, and wounding 
 or maiming as well as tlie length, breadth, and deepness of 
 the wounds ; the breaking of houses, the finding of treasure, 
 the finding of wreck and its value, and the horses, boats, 
 and carts whereby people were slain.^ But many of these 
 minor functions have disappeared under the progress of 
 new arrangements in legal duties.^ He is, however, by 
 virtue of his office, a justice of the peace, for some purposes ; 
 such as causing persons guilty or suspected of guilt to 
 be apprehended.* And lie may bind to the peace any 
 person who makes an aftray in his presence.^ Magna 
 Charta took away from him the power of holding pleas of 
 the crown.^ And the general duties of his office were 
 defined by the statute of 4 Edward I. st. 2, de officio corona- 
 toris. This statute (qualified by 1 Eichard III. c. 3) directs 
 that he shall go to any place where a person is slain or 
 suddenly dead, and inquire into the circumstances — who 
 were present — and who, if any, were culpable. This duty of 
 the coroner is to be exercised with great discretion. Where 
 a person dies suddenly in a house, and there is no reason- 
 able suggestion that the death was otherwise than in the 
 course, of nature, this is no ground for the coroner's 
 interference, unless he is requested by the occupier of the 
 house or person having some authority in the matter. The 
 correct course is for those who suggest foul play or violence 
 or unnatural causes, to inform the constable of the district 
 who will cjive notice to the coroner.' A coroner has 
 sometimes been blamed by the court, and has incurred 
 censure for too hastily obtruding himself into private 
 families to institute his inquiries.^ The practice of paying 
 
 ' 2 Vent. 26 ; Fitz. N. B. 163. 24 Ed. I. Stat. Cor. 
 
 3 He cannot inquire into the cause of tires. — R. v Hertford, 
 29 L. J., Q. B. 249. He has power to act in aid of the slieriff in 
 some cases.— 5 M. & S. 144 ; 8 Mod. 193 ; 1 W. Bl. 506 ; 7 & 8 Vic. 
 0. 92, § 22. 
 
 * Mirr. c. i. § 13 ; Lamb. Eiren.378 ; 2 Hale, P. C. 107. ^ 1 Bac. 
 Al)r. 491 6 Mag. Chart, c. 17. 7 1 Salk. 377 ; 1 East. P. C. 378, 382. 
 
 ■* 11 East, 229 ; lOQ. B. 79f>. Where fatal accidents occur in mines 
 
 1 
 
 I
 
 <Ti. IV.] CORONER'S DUTIES. 407 
 
 coroners by fees necessarily tended to this evil.^ When 
 several coroners acted for one district, the first who held 
 the inquiry was deemed seised of the whole jurisdiction.* 
 But now each has a district of his own, though a neigh- 
 bouring coroner may act for another who is unable to 
 attend.^ As it is the duty of the coroner to hold an inquest 
 on the body of any person who has died a violent death, it 
 is deemed essential that the body should be seen when ii 
 is fresh. Hence, if any person bury the body either before 
 the coroner has been informed, and had an opportunity c<f 
 viewing it, or allow too great time to elapse before the 
 coroner has been informed, this is an indictable offence.* 
 
 The body of the dead person is viewed by the coroner and 
 the jurors, because it tends to throw light on all that con- 
 tributed to the cause of death. He ought, therefore, to 
 cause a jury, consisting of at least twelve persons, to be 
 summoned.-'' Any undue delay or refusal is now punish- 
 able by attachment on the application of the Attorney- 
 General to the Queen's Bench Division,^ or by removal by 
 the Lord Chancellor.^ Wherever the body is found, the 
 coroner of the district has the jurisdiction to hold the 
 inquest, though the causes of death may have occurred else- 
 where.^ And if the inquest is not taken upon the view of 
 the body itself, that is to say, when the body is either 
 present or within access of the jury, the inquest is void.^ 
 It is not, however, essential that both the coroner and jury 
 should view the body at one and the same time, or that the 
 latter be sworn in view of the body, though that is the 
 correct course.^° Indeed, the body itself is deemed part of 
 the evidence before the jury, and according to the ancient 
 practice was deemed to be lying in view during the whole 
 inquiry ,^^ the reason for this being, that the body supplies 
 
 special enactments provide that due publicit}-, and the presence of 
 all interested shall be secured. — 35 & 36 Vic. 76, § 60 ; Ibid. c. 77, 
 § 22. And the same as to railwav accidents. — 36 & 37 Vic. c. 
 76, § 5. And deaths in prison.— 28 & 2'J Vic. c. 126, § 48. 
 
 1 I East. P. C. 382. 2 2 Hale, P. C. 56. 69. ^ 7&8 Vic. a 92, 
 § 20. 4 R. V Clark, 1 Salk. 377 ; Anon. 7 Mod. 10 ; 2 Hawk. P. C. 
 c. 9, § 23. 5 2 Hawk. P. C. c. 9 §, 22. 6 23 & 24 Vic. c. 116, § 5. 
 " Re Ward, 4 L. T., N.S. 458. » 6 Vic. c. 12, § 1 ; K v Hinde, 
 5 Q. B. 944. 9 R. v Ferrand, 3 B. & Aid. 260. i« 6 & 7 Vic. c. 83, 
 § 2 ; R. u Ingham, 5 B. & & 257. " 4 Ed. L st, 2.
 
 408 OF THE SECURITY OF THE PERSON. [cu. iv. 
 
 important evidence, and that evidence may be rendered futile 
 by long delay. The coroner, when holding his inquiry, 
 should confine this to the antecedents of the death, and 
 though he may inquire into any alleged accessories to the 
 crime, the question whether anyone was an accessory after 
 the fact is in general immaterial.^ In furtherance of his 
 duty he may issue his summons requiring the attendance 
 of a witness, and fine such witness for not attending, or 
 for contempt in not giving evidence.^ And as an inqui- 
 sition of the coroner is on the footing of an indictment, he 
 is bound to receive evidence on the part of the person 
 accused or suspected.^ He is also bound to take down the 
 material part of the evidence in writing.* He may also 
 bind over all material witnesses to appear and give 
 evidence at the trial of the accused. When the coroner 
 finishes his inquiry, and the verdict of the jury is given, 
 the inquisition is drawn up and sealed by the coroner 
 and jury. After which step the function of the coroner 
 is fully discharged, and no second inquisition can be 
 taken till the first is quashed, which it may be on the 
 ground that it was abortive, and that there is reason 
 to believe better evidence is accessible.^ Moreover, the 
 Queen's Bench Division may order a new inquiry before 
 special commissioners.^ Should the verdict be one of 
 guilty, the coroner may issue his warrant to apprehend 
 and commit the prisoner. 
 
 As the duties of the coroner are paramount to his 
 duties as a citizen, he was always held exempt from those 
 which were inconsistent with his own;^ and he is also 
 exempted by statute from some others. He was also, as 
 a matter of course, held to be privileged from arrest for 
 civil debt in going to and returning from holding an 
 inquest.^ The coroner enjoys his office for life, though it 
 used to be vacated by his being appointed to an inconsist- 
 ent office, as that of sheriff or verderer, incidents which 
 
 ' 2 Hawk. P. C. c. 9, §§ 2r., 27 ; Mirr. 29 PI. 95. 2 7 & 8 Vic. 
 c. 92, § 17 ; 22 & 23 Vic.'c. 21, § 20. 3 2 Hale, P. C. (JO ; R. v 
 Inf^liarn, 5 B. & S. 257. " 7 Geo. IV. c. 64, § 4. & R. « White, 
 .'{ E& E. 1860 ; R. v Carter, 34 L. T , N. S. 849. « Anon. 12 Mod. 
 112. 7 2 Rol. Ab. 632, § 4. « Ex p. Coroner of Middlesex, 6 H. 
 & N. 501.
 
 oil. IV.] DISMISSING A CORONER. 409 
 
 now can seldom arise.^ A county coroner had no power 
 originally, though an admiralty coroner was by his appoint- 
 ment so authorised, to appoint a deputy j^ but that power 
 is now conferred upon him, so that he may appoint in 
 writing during his pleasure a deputy approved by the 
 Lord Chancellor. Such deputy, however, can only act 
 during the illness of the coroner, or his absence from any 
 lawful or reasonable cause ; ^ and absence on a holiday is a 
 very reasonable cause.'* A borough coroner also has a like 
 power to appoint by writing a deputy to act during his 
 illness or unavoidable absence, as, for example, where he 
 is holding another inquest.^ 
 
 Fees and expenses of coroner. — At first the duties of the 
 coroner were so high, that he was not allowed to claim any 
 remuneration.*^ Fees, however, were soon found necessary 
 as a stimulus to the more efficient discharge of the duties," 
 though no fee was allowed to be charged in case of death 
 by misadventure.^ But fees in turn often led to an officious 
 zeal, and at last the practice of payment by annual salary 
 was adopted in the case of a county coroner ; and this 
 salary is paid out of the county rate.^ He is authorised 
 to pay the necessary expenses attending each inquest, 
 according to a scale of allowances settled by the county 
 justices, or in boroughs by the town council.^'' He is also 
 authorised to summon and pay medical witnesses, and to 
 direct, if deemed necessary by him, a post-mortem exami- 
 nation, and he is bound to do so on a requisition from a 
 majority of the jury.^^ And such medical practitioner, as 
 may be summoned, is bound under a penalty to attend as 
 a witness. ^^ 
 
 Removing or dismissing a coroner. — A coroner was liable 
 by several statutes to punishment for misconduct in his 
 office,^^ and he was also liable to indictment on criminal 
 
 ' 1 Bl. Com. 348. 2 2 Hale, P. C. 57 ; 1 East, P. C. 383 ; R. v 
 
 Ferrand, 3 B. & Aid. 260. s (; & 7 vic. c. 83, § 1. " R. t? Johnson, 
 42 L. J., M. C. 41. 5 6 & 7 Will. IV. c. 105, § 6 ; 5 & 6 Will. IV. 
 c. 76, § 63 ; K. v Perkin, 7 Q. B. 165. « West. 1st, c. 10 ; 2 Inst. 
 173 ; 1 Bl. Com. 347. ^ 3 Hen. VII. c. 1, § 4 ; 2 Inst. 176 ; 25 
 Geo. II. c. 29 ; 1 Vic. c. 68, § 3. M Hen. VIII. c. 7. " 23 & 24 
 Vic. 0.116. i»lVic. c. 68; 23 & 24 Vic. c. 116, § 4. "6&7 
 Will. IV. c. 89 ; 1 Vic. c. 68, § 2; 23 & 24 Vic. c. 116, § 1. 
 '2 6 & 7 Will. IV. c. 89, § 6. '3 3 Ed. I. c. 9 ; 1 lien. VIII. c. 7 ; 
 3 Hen. VII. c.l ; Hale, P. C. 58.
 
 410 OF THE SECUEITY OF THE PERSON. " [ch. iv. 
 
 information for gross misconduct.^ The ancient mode of 
 getting rid of him was by a writ of de coronatore exonerando, 
 which assigned reasons why he should be removed from 
 the office, as age, illness, corruption, imprisonment, or an 
 incompatible office.''^ This writ was issued by the Court of 
 Chancery on a petition of the freeholders, verified by 
 affidavit, and the coroner had notice of its contents f though 
 it was held that he could not traverse the cause recited in 
 the writ.'* An enactment facilitated the same object by 
 allowing a court, before which certain coroners were con- 
 victed, to adjudge, that they should be removed from their 
 office.^ And the Lord Chancellor is now expressly 
 authorised to remove all coroners for inability or misbe- 
 haviour in their office, as for example for drunkenness.^ 
 
 If coroner s court a public court. — It has been disputed 
 whether the coroner's court is a public or private court. 
 The notoriety of the inquiry and the supposed duty of all 
 to attend no doubt practically made it so. And the 
 coroner, though nowhere expressly ordered to hear witnesses 
 on both sides, is clearly bound by the rules of justice to 
 hear one side as well as another, seeing that his sole object 
 is the truth.^ And counsel have a right to be heard for a 
 party concerned in the inquest, as well as for the friends of 
 the dtceased party. Indeed if a witness is willing to give 
 evidence which may criminate him, it is no part of the duty 
 of the coroner to refuse to examine such witness.^ But as 
 the inquiry is M'ide and indeterminate and no individual is 
 charged, and it may end in no accusation being made at all, 
 there is good ground for holding, that the court is not an open 
 court, and that the coroner has a discretion as to admitting 
 persons not interested or not closely connected with the in- 
 quiry. At least a coroner has been held entitled to exclude 
 at his discretion from his court a person in no way interested 
 in the subject.'' Cases may occur in wliich privacy maybe 
 requisite for the sake of decency ; others in which it may 
 
 > R. V Scory, Leach, C. C. 43. 2 2 Inst. 1.32 ; Fitz. N. B. 16?. ; 
 Ex p. Pariiell, 1 J. & W. 452. 3 3 Atk. 184 ; He Ward, .'30 L. J., Ch. 
 776. * 5 Rep. 58 ; Fitz. N. B. 164. ^ ^6 Geo. II. c. 29, § 6. 
 6 23 & 24 Vic. c. 116, § 6 ; Re Ward, 30 L. J., Ch. 775. ^ 2 Hale, 
 P. C. 60 ; Rv Ingham, 5 B. & S. 257. ^ Wakely v Cooke, 4 Extli. 
 511. 9 Garnett v Ferrand, B. & C. 611.
 
 CH. IV.] ATTEMII' TO MURDER. Ill 
 
 be due to the family of the deceased ; aud the propriety of 
 the coroner's decision on this subject cannot be questioned. 
 Moreover, a coroner's court being a court of record, one of 
 the incidents of such court is, that the judge is not liable 
 tor any mistake made in performing the duties of judge.^ 
 But it is not a continuing court, and if it is adjourned to a 
 particular day, and no court is held or further adjourned, 
 the proceeding drops and cannot be resumed.^ 
 
 The coroners jury and verdict.— Tho. jury assisting the 
 coroner is taken from the neighbourhood, that is to say, 
 from the county at large, and he may fine jurymen for not 
 attending.^ Their number must exceed twelve. And if 
 a majority of twelve agree, their verdict may be accepted ; 
 but if such a majority do not agree, they can only after a 
 reasonable time be discharged.* Though by analogy to 
 other cases the jury should accept the views of the law, 
 laid before them by the coroner, and confine themselves to 
 the finding of facts ; yet if they do transgress their province, 
 there is no w^ay provided for remedying their mistake, and 
 the old remedy of proceeding by attaint against juries 
 was abolished in 1826.^ When the coroner's inquisition is 
 drawn up, it is equivalent to a finding by a grand jury, 
 and the party charged may be tried upon the inquisition, 
 and technical objections are to some extent restrained ; ^ 
 and the trial may be directed by the High Court to be 
 had in a different place from the venue in the inquisition.^ 
 
 Attempts to murder how far crime. — The crime of 
 murder necessarily supposes, that life has been taken, but 
 owing to the variety of circumstances which may inter- 
 pose between the felonious design, existing in the mind 
 of the murderer, and the execution of that design, it 
 frequently happens that the intention has fallen short of 
 a fatal issue. The essence of all crime being the state of 
 mind and the evil intent, the guilt of the ciiief actor may, 
 in point of morality, be the same as if the fatal result 
 which he intended, and took the means to eiiect, had been 
 duly attained ; nevertheless, the law gives him the benefit 
 
 ' Thomas v Churton, 2 B. & S. 475. 2 r. ^ p.,yn, 34 L. J., Q. B. 
 59. 3 7 & 8 Vic. c. 92, § 17. "2 Hale, P. C. 297. ^ g Geo. IV. 
 c. 50, § 62. 6 6 & 7 Vic. c. 83, § 2 ; 14 & 15 Vic. c. 100, §§ 23, 24 ; 
 R. V Ingham, 5 B. & S. 257. ' R. v Palmer, 5 E. & B. 1024.
 
 412 OF THE SECURITY OF THE PERSON. fcii. iv. 
 
 of this result, and if death is not actually caused, his 
 offence is not punished in the same manner as liis conduct 
 deserved. The attempt to murder is established by 
 proof of using the same means, as if murder had been 
 committed, as by stabbing, shooting, beating, poisoning, 
 strangling : nevertheless there is less strictness in proving 
 the malice, which is so important in all prosecutions for 
 murder, and the punishment also falls short. The most 
 usual case in attempts to murder, is where some wound or 
 bodily injury has been caused, but nothing more. 
 
 Ancient law of lex talionis. — At this point we come upon 
 an early remedy for maiming the body, which, however 
 discordant with modern ideas, recommended itself in its 
 time to nearly all barbarous and semi-barbarous nations 
 as the most just, equal, and unexceptionable law that it 
 could enter the mind of man to conceive. This was the 
 hx talionis, which has prevailed in all places and times, 
 and which still claims the allegiance of savage tril)es. It 
 lias left traces wliich to this day are discernible in many 
 forms common in every law of the world, and even linger 
 in minds that have no obvious suspicion as to its parent- 
 age. The law of Moses recognised this ancient practice 
 of retaliation, by which an eye was given for an eye, 
 and a tooth for a tooth.^ And it was deemed at that period 
 a just and equal law, for rich as well as poor, and was 
 moreover confined to cases of deliberate maiming, and 
 optional to the aggrieved person.^ This law was deemed 
 also just by the Athenians,^ and was followed in the 
 twelve tables of the Eomans.* The Eipuarians, Alamans, 
 Lombards, and Frisians also had a tariff of punishments 
 for every grade of assault and mutilation.^ 
 
 ' Lev. xxiv. 19, 20 ; Exod. xxi. 23, 24, 25. 2 Michaelis, Com. 
 § 240. 3 Petitt, Leg. Attic, vii. 3. 
 
 * Tab. vii. In the Gentoo code the law of retaliation was in full force. 
 In pome cases it was pushed to extremes. To strike a Brahmin was 
 punished with Ihc loss of the limb. And if a magistrate was beaten 
 or ill-used, the culprit had an iron spit put through him, and was 
 roasted at the fire. — Gent. Code, c. 16. The Indians of the Rocky 
 Mountains to this day look upon this law as admirable justice. — 
 1 Schooler. 2();), 277. It also prevails in Alaska. — DaWs Alaska, 416. 
 
 ^ About 1128 the charter of the French borough of Laon ex- 
 pressly laid down the lex talionis for that place.— 3 Guizot, Civ. Fr. 
 lect. 17,
 
 na. IV.] THE LEX TALIONIS. 413 
 
 The lex talionis in England. — The lex talionis also flour- 
 ished in this country. In Ethelbert's laws as well as King 
 Alfred's, a minute scale of compensation was laid down 
 for all kinds of bodily injuries, according as the blow 
 exposed the bone or broke the skin, lamed a shoulder or 
 pierced an ear or a nose, broke a collar-bone or front tooth, 
 a toe or the nail of a toe.^ The law stated by Britton as to 
 maiming was this : — If the wound was what was called a 
 mayhem, that is, the loss of a member whereby a man was 
 rendered less able to fight, as an eye, a hand, a foot, or 
 fracture of a skull bone, or the loss of the fore teeth, this 
 was a ground of appeal of mayhem. The fore teeth were 
 deemed useful in battle, for if the wound cost nothing more 
 serious than the molar teeth, or an ear, or the nose, these 
 were deemed mere disfigurements, but not mayhems. This 
 appeal was, however, an alternative remedy. In order to 
 avoid the perilous risk, an action of trespass was competent. 
 The risk of the appellor was, that if he failed, owing to 
 some error in the record, he might be committed to prison 
 and ordered to make satisfaction to the defendant, and also 
 to the king. On the other hand, if the appellee was 
 vanquished in battle, or was found guilty by a jury, the 
 judgment was, that wound should be inflicted for wound, 
 imprisonment for imprisonment, and trespass for trespass. 
 And yet so early as the time of Edward I. the crown 
 exercised the power of substituting for this punishment 
 the imprisonment of the appellee in irons, till he made 
 satisfaction to the plaintiff's, after which he was punished 
 for breach of the peace also. If a writ of trespass issued 
 for like mayhems, the judgment was the same. But in 
 some cases, where, for example, a ribald or worthless 
 person struck a knight or honourable person in time 
 of peace without provocation, he was sentenced to lose the 
 hand wherewith he had o&'ended.^ 
 
 Thus by the ancient law of England, he that maimed 
 any man, whereby he lost any part of his body was sen- 
 tenced to lose the like part, memhrum pro memhro?' But 
 this went afterwards out of use, partly because the law of 
 retaliation is at best an inadequate rule of punishment, 
 
 • Laws of Ethelbert, a.d. 597-616; Laws of K. Alfred, ad 
 871-901. 2 Britt. b. i. c. 26 ; Bract. 145 ; Fleta, 58-60. See the 
 Gentoo law, ante, p. 412. ^ 3 Inst. 118.
 
 414 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 and partly because upon a repetition of the offence the 
 punishment could not always be repeated.^ It was found 
 necessary even at an early date to pass statutes to correct 
 the vagueness of this popular law. 
 
 Defects of the lex talionis. — It is not to be wondered 
 accordingly that the lex talionis should have failed to give 
 satisfaction even in the earliest times. The philosophers 
 have exposed its want of justice and equity, for, besides 
 the impossibility of always imposing the same injury on 
 the assailant, there is this essential difference, that in a 
 premeditated and expected attack the pain is doubly and 
 trebly greater than is endured in an unexpected and 
 comparatively accidental injury.^ There was also the 
 difiiculty of settling the tariff of equivalent pains. The 
 old Welsh law ably solved a difficult point in this re- 
 spect, when it estimated the worth of the tongue as equal 
 to that of all the other members, on the ground that it 
 defended them.^ 
 
 But the crucial case which must have always haunted 
 the human mind with interminable doubt and uncer- 
 tainty was the case of the one-eyed man. The inability 
 to deal at all fairly with this peculiar difficulty could 
 not fail to have much to do with the final abandonment 
 of the principle altogether, seeing that no court, no judge, 
 no legislature, no jury could ever satisfactorily dispose of 
 it. When a two-eyed man put out the eye of a one-eyed 
 man, Diodorus Siculus relates, that the Sybarite judges 
 doubted whether both eyes, or only one, of the offender 
 should be put out.* And Solon was said to have shown 
 great wisdom in expressly enacting, that both eyes should 
 be put out.^ The wisest of men, however, could never 
 hope to show sound and adequate reasons for preferring 
 either of these solutions to the other.^ 
 
 Statutes against 7naimivg and wounding. — The legislature 
 soon began to see, that bodily maimings required apj)ropriate 
 
 1 Bract. lol. 144. 2 Mirhaclis, Com. § 242. 3 Vened. Code, 
 b. iii. c. 28. "^ DMern. Acad. Iiiscr. 175. ^ Dioj^. Laert. Sol. ; Diod. Sic. 
 
 6 Another dilTunilty is admirably brought out by Bacon in his 
 Apoptli.c(pns. A Flemish tiler once fell from the top of a house on 
 a Spaniard and killed the latter, though he himself escaped. The 
 next in blood demanded the lex talionis., whereupon the judge said 
 lie must go up to the top of the house and fall down on the tiler. — 
 Bac. Apopth. 70.
 
 cii. IV.] PUNISHMENT FOR MAIMING BODY. 415 
 
 punishment of another kind than the first thoughts of 
 mankind assigned to them. The first specific enactment 
 against mutilation was 5 Henry IV. c. 5, which declared 
 it to be felony maliciously to cut out the tongue or put 
 out the eye ; but other mutilations were not named, and 
 could not, according to the rules of law, be implied.^ That 
 statute was supposed to be passed, in order to put down 
 a practice of robbers trying by this cruel expedient to 
 make it impossible for their victims to give evidence 
 against them. Coke, however, said that before that statute 
 some kinds of mutilation were felonies at common law.^ 
 By a statute of Henry VIII. if a man's ear was maliciously 
 cut off, a fine was payable to the king, and treble damages 
 recoverable by action.^ The Stabbing Act of 1 James I. 
 c. 8, which took away the benefit of clergy from that 
 offence, was supposed to have been caused by the practice 
 of the Scotch, who, on flocking to England in that reign, 
 used dirks in cases of provocation, to which mode of 
 surprise the English were unaccustomed.* Juries were 
 then in the habit of reducing homicide, which was caused 
 on verbal provocation, to manslaughter. And all the 
 judges met at Serjeant's Inn in 1666, and held that that 
 statute was only a declaration of the common law, and 
 made to prevent the inconveniences of juries trying to 
 extenuate murder by finding some provocation.^ And by 
 the 22 & 2o Charles II. c. 1, called.the Coventry Act, which 
 was occasioned by an assault on Sir John Coventry in the 
 street, and slitting his nose, in revenge, as was supposed, 
 for some jest on Charles II. and Nell Gwynne, uttered by 
 him in Parliament, such attacks on the nose, eyes, tongue, 
 or lips, with intent to maim or disfigure, were declared 
 felonies. Next came the Black Act, 9 George I. c. 22, 
 which extended the same law to maliciously shooting, and 
 other statutes of George III. and George IV. followed. 
 All these have been swept aM^ay, and are replaced by 
 the statute of 1861.« 
 
 These enactments now divide the subject into attempts 
 at wounding, poisoning, &c., with intent to murder ; and 
 those which cause danger to life or bodily harm. The 
 
 ' 5 Hen. IV. c. 5. 23 i„st. 62. 3 37 Hen. VIII. c. 6. * Bar- 
 ringt. Stat. 544 ; R. v Kerl, L. Raym. 139. '^ Kel. 54 ; 18 St. Tr 
 305. 6 24 & 25 Vic. c. 100.
 
 416 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 mode is to single out for punishment tlie most usual means 
 employed, in order to effect the general design or intent, 
 or which produce the effect described. 
 
 The modern crimes of attempts to murder. — The statute 
 enacts, that whosoever, with intent to commit murder, 
 administers poison or other destructive thing, or by any 
 means causes grievous bodily harm — or uses gunpowder 
 to a building — ^or fires a ship — or shoots with loaded arms 
 — or attempts to drown or suffocate — all with such intent — 
 or by any other means attempts to commit murder, is guilty 
 of felony and is liable to penal servitude for life.^ The 
 intent to murder here mentioned, coupled with the overt 
 act of means being used or attempted, is the important and 
 essential characteristic of this class of crimes ; and as in 
 the analogous case of actual murder, the intent need not 
 
 O ... 
 
 be directed against the specific individual on whom it 
 falls ; for if by mistake the poison or the blow reach a third 
 party in regular course of things, though not contemplated 
 by the perpetrator, the guilt is the same.^ The intent to 
 murder may be either a primary or secondary intent.^ And 
 if it would have been murder if death had resulted, this will 
 always be a good ground for inferring the intent to murder ;* 
 but it must be an intent to murder, not merely to disable 
 a person temporarily.^ The bare intent in the mind is 
 not enough, unless some overt means be used, by way of 
 carrying out that intent, as by shooting at the person, or 
 laying poison for him, or doing acts of that malicious 
 character. And not only must there be an overt act, 
 that is, some means actually used to give effect to the 
 intent, but those means must be reasonably calculated 
 to effectuate the intent.^ Thus the means will be in- 
 sufi&cient if a gun be not loaded when pointed, as, for 
 example, if it be plugged, or the flint had fallen out ; ^ or at 
 
 1 24 & 25 Vic, c. 100, §§ 11-15 ; or not less than five years' penal 
 servitude. — Ibid ; 27 & 28 Vic. c. 47, or two years' imprisonment, 
 hard labour, and solitary confinement. 
 
 2 R. V Smith, 25 L. J., M. C. 29 ; R. v Lynch, 1 Cox, C. C. 361 ; 
 R. V Lewis, 6 C. & P. 161. ^ ^ v Gillow, 1 Mood. 85 ; R. v Davis. 
 1 C. & P. 306. 4 R. V Jones, 9 C. & P. 258. ^ r ^ Boyce, 1 Mood. 
 29. 6 R .„ Einpson, Leach, 224 ; R. v Lovel, 2 M. & Rob. 39. 
 7 R. V Carr, R. & Ry. 377 ; R. v Harris, 5 C. & P. 159 ; R. v Lewis, 
 9 C. & P. 523.
 
 en. IV.] GRIEVOUS BODILY HARM. 417 
 
 least when not loaded, if it were not sufficiently near to 
 cause harm ■,^ or if the gun be used too far off to harm.^ 
 And it lies on the prosecution to give some evidence that 
 the gun was loaded or the means used were sufficient f 
 though, considering that the fear of the person aimed at is 
 the same, and the matter is often so great an uncertainty, 
 this rule seems unjust, and the prisoner ought to be bound 
 to disprove the possibility of harm. The gun, however, is 
 not the less " loaded " merely because the means of firing 
 it failed.'* 
 
 To administer poison, within the meaning of this enact- 
 ment, means to put it in such a situation, that it will in 
 the course of things in all probability be taken by the 
 person intended, though the party administering was not 
 present when the poison was taken.^ And it is not the 
 less a ground of inferring an intent to murder, that the 
 immediate object was merely to cause a miscarriage.^ 
 
 The word " wound " has been so interpreted as not to 
 include an injury which does not break tlie skin,'^ and not 
 to include, for example, a kick which merely ruptured an 
 interior vessel, unless blood flowed from the rupture.^ At 
 one time the biting off a finger was said not to be a wound 
 when the word " wound " alone was used in the statute, for 
 woimding implied that an instrument was used f but now 
 it is immaterial, whether an instrument is used or not, as 
 all means are included in the present statute. 
 
 In an indictment for wounding, &c., with intent to 
 murder, it is wholly unnecessary to set forth the details 
 of the means used to carry out the intent ; but whether it 
 was by poison or wounding, &c., should be stated generally, 
 and the intent should be stated. And though the prisoner 
 cannot be found guilty of a common assault under the 
 indictment ;^*^ he may be found guilty of unlawfully 
 wounding.^^ 
 
 The modern erimes of causing grievous hodily harm. — 
 
 1 R. V Kitclien, R. & Ry. 95. 2 r_ ^ Abraliam, 1 Cox, C. C. 208. 
 
 3 Whitley's Case, 1 Lew. C. C. 123. "i 24 & 2.0 Vic. c. 100, § 19. 
 5 R. V Harley, 4 C. & P. 369 ; R. v Dale, 6 Cox, C. C. 14 ; R. z; 
 Farrow, D. & B. 1G4. 6 r, ^ Wilson, D. & B. 127. '' R. v Wood, 
 
 4 C. & P. 381 ; 1 M. & Rob. 527 ; R. v Payne, 4 C. & P. 558. » R. v 
 Jones, 3 Cox, C. C. 441 ; R. v Waltliani, 3 Cox, C. C. 442. ^ R. v 
 Stevens, 1 Mood. 409.. lo 14 & 15 Vic. c. 100, § 10. " Ibid. c. 19, 
 §§ 4, 5. 
 
 VOL. I. K E
 
 418 OF THE SECURITY OF THE PERSON. [ch. jv. 
 
 While in those crimes called attempts to murder, the 
 intent is the vital element, there are many cases in which 
 grievous bodily harm is done, and the intent does not go the 
 length of killing, but only of wounding and causing pain. 
 Accordingly, the statute has defined as separate offences 
 those which actually cause grievous bodily harm by what- 
 ever means, though not with intent to kill the wounded 
 party ; and these are also felonies, and punishable in the 
 same way.^ The various means of shooting, strangling, 
 stupefying with chroloform, and poisoning, are specially 
 named as usual means for this class of offences also.^ The 
 intent to maim or disfigure is an inference from the facts, 
 and in some cases it is scarcely possible to infer any other 
 intent than the more serious intent to murder.^ But if 
 there is an intent to frighten, though not an intent to do 
 grievous bodily harm, and the latter is nevertheless done, 
 the malicious intent will be presumed/ 
 
 And where the same means of poisoning are used, but 
 only with intent to injure, aggrieve, or annoy, it is a 
 misdemeanour.^ And to administer a drug to excite the 
 sensual passion is to aggrieve and annoy.^ But where 
 no weapon is used, but grievous bodily harm is done, 
 the crime is reduced to a misdemeanour.'' In this last 
 offence the intent does not require to be proved, provided 
 the circumstances show it was an unlawful or malicious 
 wound or harm. And on an indictment for this misde- 
 meanour, the defendant may be found guilty of an assault.*' 
 Moreover where a person is indicted for the felony of 
 poisoning, he may be acquitted of that felony and convicted 
 of the misdemeanour.-^ 
 
 Mutilation of the body for special oljects. — Under this 
 head of maiming and wounding would come all acts which 
 maim or injure the body grievously, whatever the inten- 
 
 1 24 & 25 Vic. c. 100, § 18 ; 27 & 28 Vic. c. 47. Penal servitude 
 for life, or not less than iive years, or two years' imprisonment with 
 or without liard labour. 
 
 2 24 & 25 Vic. c. 100, §§ 19-23. 3 R. v SulHvan, Car. & M. 209 ; 
 R. V Odgera, 2 M. & Rob. 479. " R. v Ward, 41 L. J., M. C. 69. 
 5 24 & 25 Vic. c. 100, § 24. Penal servitude for five years, or two 
 years' imprisonment with hard labour. '^ R. v Wilkins, 1 L. & C. 
 89. ^ 24 & 25 Vic. c. 100, § 20. » R. v Taylor, L. R., 1 C. C. R. 
 194 ; R. V Oliver, Bell, C. C. 287 ; R. v Sparrow, Bell, C. C. 298. 
 '■> 24 & 25 Vic. c. 100, § 26.
 
 n\. IV.] CAUSING BODILY HARM. 4\\) 
 
 tioii be ; and though the immediate object be to produce 
 a state of health or a particular incapacity with an ulterior 
 view, irrespective of malice. Such attempts to maim 
 others against their will, and professedly for their ov/n 
 advantage, are indeed unknown in this country, though in 
 eastern countries they are not unfrequent.^ 
 
 Causing bodily harm hy spiteful acts and conduct. — Other 
 modes of causing bodily harm have been expressly pro- 
 vided for by statutes. Thus, wliere a master or mistress 
 being legally bound to supply food, or clothing, or lodging, 
 by neglect or refusal causes bodily harm, so as to produce 
 permanent injury to a servant or apprentice, this is a 
 misdemeanour.- The ability to supply the food in such 
 cases must, however, be shown, for the master may have 
 none to give, even though he may have applied to the 
 workhouse for relief^ And it is felony if gunpowder, or 
 explosive, or noxious, or corrosive substances are used to 
 do grievous bodily harm in ships or elsewhere.'* And it is 
 the same to put stones and articles on railways, or remove 
 signals, or cause other interruptions, or to throw stones at 
 railway carriages so as to endanger the safety of railway 
 travellers;^ and any wilful or unlawful act done to en- 
 danger railway travellers is a misdemeanour.^ With 
 regard to these offences, it is enough, that the act might 
 have endangered the safety of persons carried in the 
 railway carriages or trucks, though no actual harm re- 
 sulted.'' 
 
 Aiding another hi sdf -mutilation. — A person who maims 
 himself or procures another to do so, in order that he may be 
 better enabled to beg, or prevent himself being pressed for 
 
 ' Semiramis is said to have introduced the order of eunuchs. — G'thh. 
 Rom. Emp. c. 31. And the practice of. mutilation has since exten- 
 sively prevailed in Eastern countries. Voltaire complained of 
 chorister boys being mutilated. — Volt.., Becc. c. 20. Domitian gained 
 applause by prohibiting the practice altogether, as regards children. 
 —Suet. Dom. c. 7 ; Justin. Aj). ii. And Aurelian prohibited more 
 than a certain number of eunuchs to be kept. — Aurel. Vict. 
 
 2 24 & 25 Vic. c. 100, § 20. Five years' penal servitude, or two 
 years' imprisonment. ^ R. w Chandler, Dearsl. 453 ; R. v Pelham, 
 8 Q. B. 959. " 24 & 25 Vic. c. 100, §§ 28, 29, 30. Penal servitude 
 for life, or not less than five years, or two years' imprisonmeiii. 
 » Ibid. §§ 32, 33. e ibid. § 34. 7 r. ^ Holroyd, 2 M. & Rob. 339 ; 
 E. V Bradford, 8 Cox, 309. 
 
 E E 2
 
 420 OF THE SECURITY OF THE PERSON. [ch. iv. 
 
 a soldier, was said by Hale to commit a misdemeanour, 
 and both are liable to fine or imprisonment.^ 
 
 Self -mutilation, if a crime. — Since suicide is treated 
 as an unlawful act, and any aiding and abetting of it a 
 misdemeanour, it might be expected that any inferior 
 degree of the same wrong, consisting in any kind of self- 
 mutilation, would be treated as a crime, especially as the 
 power of punishment, which in the case of suicide becomes 
 impossible, is available for any self-imposed injury short 
 of self-murder. Such an injury seems indeed rare, and 
 the love of life is a secure safeguard against it ; yet self- 
 mutilation seems a crime under our law. It is true, the 
 motives that impel to it, whether religious, fanatical, or 
 mercenary, have long ceased to have any hold on the mind. 
 l*riests and scholars, courtiers and chamberlains, feel no 
 overpowering motives to any such conduct ; and hence 
 the only punishment that has yet been assigned to it is 
 that for misdemeanour.'^ But in the naval service, if 
 a marine wilfully maim himself or another marine, or 
 cause himself or another to be maimed, whether on request 
 or not, or tamper with his eyes with intent to render 
 liimself or the other unfit for service, he may forfeit all his 
 right to pensions and good conduct pay ; yet further than 
 this collateral liability, punishment there is none.^ And 
 the Articles of War, which also apply to army and navy, 
 treat any self- mutilation, so as to render one unfit for 
 service, as an offence.* 
 
 I 1 Hale, 412. ^ Ibid., P. C. 412. 3 Mar. Mut. Act, 39 Vic. 
 
 c.,9, § 31. 
 
 ■* Art. of War, § 81. Savages mutilate themselves for various rea- 
 sons, the origin of which can scarcely be traced. The lip-ring worn by 
 the Manganya women in Africa, hideous as it was, was traced to 
 nothing- beyond a conformity to fashion. — Livingsf. Zamh. 117. The 
 Ethiopians were said to have a law, thatif their king became maimed 
 or wounded by accident, all his domestics were compelled to wound 
 themselves in the same way, and at his death to kill themselves. — 
 Diod. Sic. Among some tribes, when a marriage occurs, instead of a ring 
 being put on the finger, one of the fingei'-joints is cut off. — Whately, 
 Givilis. The Roman Galli, or priests of Cybele, mutilated themselves. 
 In Tongking it was said, that nmtilation was the only mode of ob- 
 taining rapid promotion in the state. — 3 Univ. Mod. Hist. 450. In 
 India, devotees resort to self-mutihition for holy purposes, will swing 
 on hooks, hanging themselves head downwards over a lire, will roll 
 on a bed of prickl}- thorns, will jump on a couch filled with sharp
 
 OH. IV.] SELF-MUTILATION. 421 
 
 knives, will bore holes in their tongues ; stick their bodies full of 
 pins and needles, or hold their arms over their heads till they stiffen. 
 — Clarke, Ten Relig. 83. Democritus is said to have deprived him- 
 self of sight in order to be undisturbed in his studies. — Cic. de Fin. 
 V. 29. 
 
 It was reckoned by the Early Church that he who disfigured his 
 own body by cutting off any member, or part thereof, without just 
 reason, was guilty of a species of self-murder, as being an enemy of 
 the workmanship of God. — Canon Apost. c. 21 ; Cone. Nic. can. 1. 
 
 " The ascetic epidemic of the fourth and fifth centuries is a singular 
 episode in the moral history of mankind. A hideous, sordid, and 
 emaciated maniac, without knowledge, without patriotism, without 
 natural affection, passing his life in a long routine of useless and 
 atrocious self-torture, and quailing before the ghastly phantoms of 
 his delirious brain, had become the ideal of the nations which had 
 known the writings of Plato and Cicero, and the lives of Socrates or 
 Cato. For about two centuries the hideous maceration of the body 
 was regarded as the highest proof of excellence." — 2 Lecky, Hist. 
 Mor. 114.
 
 CHAPTER V. 
 
 EESTRICTIONS ON HUMAN ACTIONS OWING TO COMPULSORY 
 
 ACTS AND DUTIES. 
 
 Contrast between ancient and modern law, as to minute 
 interference with daily conduct. — There is nothing wliich 
 so clearly distinguishes modern from ancient law as the 
 practice of coercing and harassing individuals in their 
 ordinary avocations, for petty objects, in petty ways, and 
 with inadequate and abortive results. The ancients, having 
 no definite view as to the precise function of municipal 
 law, were imbued with the notion that it must be closely 
 connected with the practice of all the virtues, that law 
 must be the means of compelling people to act rightly, 
 much more than to avoid acting wrongly. The logical 
 consequence followed, that men ought, in their view, to be 
 dragooned into the paths of rectitude — should be led, and 
 watched, and driven. Men, according to them, could not 
 aspire to have any will of their own, but must, and ought 
 to be made to Jeel, that the government, or supreme au- 
 thority, should'^be the infallible dictator for nearly all the 
 emergencies of their daily life — acting like a vigilant parent 
 on the watch for every devious tendency, and actively 
 encouraging and rewarding every effort to do right. When 
 it is considered how their notions of virtue were mixed up 
 with their intricate machinery of gods and oracles, and how 
 slavery was the accepted basis of society, many of their 
 laws and methods could not fail to be far apart from modern 
 notions and practices. Our practice has indeed settled into 
 something like the converse of theirs. We start with the 
 axiom, that the interference of government is not necessarily 
 good in itself, if the object can be otherwise attained, and 
 that its interference is at least irksome, and seldom or never
 
 r-H. v.] ANCIENT CENSORSHIPS. 423 
 
 effective when it seeks to coerce and harass the mind beyond 
 a very limited range — that its supreme virtue is negative, 
 and that there is nothing so conducive to order and recti- 
 tude as to let the better tendencies develop naturally. The 
 law merely prepares a suitable soil for these to grow and 
 ripen, taking care at the same time, and above all, to repel 
 and subdue all who seek to interfere with personal freedom.^ 
 It is not to be wondered that many large chapters of the 
 law, which in ancient times claimed serious attention, are 
 altogether omitted, and find no place in the law of the 
 moderns. And after dealing with the more substantial 
 rules and enactments which form the substantive law as 
 to threatened and actual injuries, it is next incumbent to 
 dispose of some of these minor details, which have lost their 
 importance and significance, are now all but obsolete, and 
 yet in their time gave much trouble to all legislatures, and 
 had a place in our own law to a large extent, and up to the 
 time of Bacon. Such laws are here introduced because they 
 concern the individual person more closely than any of the 
 other divisions of the law. They are not sufficiently 
 general and precise to be classed under the head of con- 
 tracts, or of the carrying on of those ordinary occupations, 
 which consist only in making a succession of contracts, or 
 in doing what is ordinarily termed the business of life, but 
 are rather restrictions on the power of disposing of one's 
 own person, or faculties, or time, in the manner which free 
 men naturally aspire to in all countries and under all 
 
 ' The Areopagus at Athens not only punished impiety and im- 
 morality, but rewarded those eminent for virtue. — Potter, Gr. Ant. 
 I), i. c. 19. It called on persons suspected of idleness to give an 
 account of how tliey lived.— See Poor Laws, Chap. vi. And to render 
 its judgments unimpeachable, and demonstrate that it paid no respect 
 to persons, it is said the court sat in the dark to decide its cases ; 
 but scholars differ as to this point. The Carthaginians had also a 
 jyrefectus rmiruin to censure iuunorality. — Alex, ah Alex. b. iii. c. 13. 
 Plutarch, with the autliority of an eye-witness, says : " The Romans 
 did not think it proper tliat anyone should be left to follow his own 
 inclinations without inspection and control, either in marriage, in 
 the procreation of children, in his table, or in the company he kept ; 
 but appointed censors to inspect, to correct, and chastise such as 
 gave way to dissipation and licentiousness, and deserting the ancient 
 way of Hving. The censors could deprive a knight of his horse, and 
 they took an estimate of each citizen's estate, and enrolled them 
 according to their pedigree, quality, and condition." — Plut. Cato.
 
 424 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 circumstauces. Many of such laws have often been called 
 sumptuary laws, but the body of rules known by that 
 general name were never connected together on any 
 defined principle. Yet one or two minor points peculiarly 
 belong to that division of the law which treats of the 
 security of the person, and this is so, merely because they 
 are not so closely connected with any other division, 
 and nevertheless cannot be entirely disregarded in any 
 complete account of the municipal law. 
 
 Sumptuary laios. — Sumptuary laws, that is to say, laws 
 which profess to regulate minutely what people shall eat 
 and drink, what guests they shall entertain, what clothes 
 they shall wear, what armour they shall possess, what 
 limit is to be put to their property, what expenses they 
 should incur in their funerals, were considered by the early 
 and middle ages as absolutely necessary for the proper 
 government of mankind. The legislatures of all ages, until 
 the last two centuries, took for granted, that they could 
 not choose but lay down rules of this minute personal and 
 harassing description. Of all such delusive notions as 
 to the proper business of government, Montaigne aptly 
 disposes in a sentence : " To enact that none but princes 
 shall eat turbot, shall wear velvet or gold lace, merely sets 
 every man more agog to eat and wear them."^ 
 
 Latvs rdating to things strictly personal. — These miscella- 
 neous laws consist of restrictions on locomotion, on services 
 or occupations, on the use and change of one's name, on dress, 
 on clothing, on food — all closely connected with the person. 
 
 Right of locomotion. — The right to go and come without 
 hindrance or impediment may be said to be one of the 
 primary elements of personal liberty ; and it has been 
 generally allowed. In the city of London, it is true, many 
 centuries ago, if one was abroad after curfew without a 
 lantern and a warrant authorising him, he was arrested, 
 and next morning punished by the mayor.'^ But the right 
 to go on the highway or street at all times of day and night, 
 
 ' Montaigne, b. i. c. 43. Some sumptuary laws went extravagant 
 lengths, huteacli i)ro])ab]y had some evil of the time in view. Tiberius 
 issued an edict against peof)le kissing each other when they met, and 
 figainst tavern-keepers selling pastry. — Suet. Tib. Lycurgus even 
 proliil)ite(I linely decorated ceilings and doors — Plut. Lycurg. 
 
 '^ 'J'cmp. 13 Ed. I.
 
 CH. v.] COMPULSORY HOSTS. 425 
 
 without licence, without challenge, and without incurring 
 legal responsibility of any kind, is a part of daily life, which 
 nothing but an express statute can take away or in the 
 smallest degree control.^ 
 
 Compulsory occupations as servants. — It is scarcely to be 
 wondered, considering the social disorder created by idle- 
 ness and beggary, and in times when slavery was no longer 
 the portion of nearly all the poor, that compulsory work 
 should sometimes have been enjoined. The Statute of 
 Labourers, reciting the pestilence and scarcity of servants, 
 made it compvQsory on every person who had no merchan- 
 dise, craft, or land, on which to live, to serve at fixed wages, 
 otherwise to be committed to gaol till he found sureties.'^ 
 And at a later day all men between twelve and sixty not 
 employed were compellable to hire themselves as servants in 
 husbandry; and unmarried women betw^een twelve and forty 
 were also liable to be hired, otherwise to be imprisoned.^ 
 These enactments are now repealed, and the only bearing 
 of what remains to be said on this subject is more properly 
 treated under the head of poor laws and begging.* 
 
 Compulsory hosts. — It may seem surprising, that the law 
 should ever have found it necessary to make it obligatory 
 on any one to receive guests against his will. At one 
 time, however, our legislature was so sensible of the mis- 
 chief of aliens coming to England and selling goods to each 
 other, that, as a check on their proceedings, it was made 
 compulsory on the mayors, sheriffs, and bailiffs, of every 
 city, town, and port, to assign hosts, with whom these 
 foreign merchants were to be boarded, so as to be under 
 surveillance. The hosts were to be reasonably rennmerated.^ 
 But they were under a heavy penalty to act, and, as part 
 of their duty, to be parties to. each sale by the foreign 
 merchants, and above all to see to the application of the 
 price after the buying of English goods by foreign ei's. If a 
 
 ^ Traces of some restriction are found of ancient date. A licence 
 to travel seems to have been granted in the time of Elizabeth. — 
 Burn's Star Ch. 81. A proclamation has been issued requiring all 
 persons to return to their country houses, and it was enforced by the 
 Star Chamber. — 2 Ilallavi, C, U. 26. The prohibition to leave the 
 country on the ground of debt or litigation pending and arrest on 
 suspicion will be stated post, Ch. vii. 
 
 2 25 Ed. III. St. 2. 3 5 Eii2. c. 4. « See post, Ch. vi. 
 
 s 5 Hen. IV. c. 9.
 
 426 OF THE SECURITY OF THE PERSON. [CH. v. 
 
 foreign merchant had not a host, he was liable to be arrested 
 and imprisoned till he found bail.^ All this compulsory 
 entertainment of guests has long disappeared, and nothing 
 remains of it, except, perhaps, that species of it, called the 
 billeting of soldiers." 
 
 Billeting of soldiers on liouseholders. — The compulsion 
 under which housekeepers are placed in receiving soldiers 
 as temporary guests, seems to have been deemed an inevi- 
 table accompaniment of a standing army. It was, however, 
 felt to be an intolerable grievance and vexation in the time 
 of Charles I., and in the Petition of Right it was expressly 
 claimed " that His Majesty would be pleased to remove the 
 said soldiers and mariners, and that his people might 
 not be so burdened in time to come."^ That enactment 
 extinguished whatever there was of common law (if indeed 
 it was possible for such to exist) to support so hateful a 
 duty as that of receiving sojourners of the military or naval 
 force into the houses of inhabitants at the dictation of any 
 commander. And the Act of Charles II. declared, that no 
 officer should thenceforth presume to billet soldiers on any 
 inhabitant without his consent."* 
 
 In the movement, however, of a standing army through 
 the country, it is all but impracticable to provide suitable 
 lodging without some compulsory hospitality. And this 
 
 1 18 Hen. VI. c. 4 (1439). 
 
 ^ The Gentoos went much further in the law of hospitality, for 
 with them it was a penal offence for a guest who accepted an invi- 
 tation, not to go to the host's house, or for the host not to give his 
 guest something to eat ; and moreover, if the guest did not eat what 
 was provided, he was bound to repay the expense. — Ge^it. Code, c. 21. 
 
 ■* 3 Ch. I. ; 2 Pari. Hist. 283. 
 
 ■* 31 Ch. II. c. 1. The way in which the petition of the House of 
 Commons alluded to this grievance was as follows : " By the funda- 
 mental laws of this realm every freeman hath, and of right ought to 
 have, a full and absolute property in his goods and estate ; and there- 
 fore the billeting and phicing soldiers in the house ot' any freeman 
 against his will is directly contrary to the said laws, &c. Yet a new 
 and almost unheard of way liatli been invented and put in practice to 
 lay soldiers upon them, scattered in companies here and there, even 
 in the heart and bowels of this kingdom, and to compel many of 
 your majesty's subjects to receive and lodge them in their own houses, 
 and both themselves and others to contribute towards the mainte- 
 nance of them, to the exceeding great disservice of your majesty, 
 the general terror of all, and utter undoing of many of your people." 
 —2 Pari. Hist. 283.
 
 CH. v.] BILLETING OF SOLDIERS. 427 
 
 has been effected by the modern practice of billeting the 
 troops on the occupiers of private houses. To do this in 
 the least hateful fashion requires some machinery involving 
 an inevitable liability, which, so long as it is impartially 
 imposed, is cheerfully submitted to, because unaccompanied 
 with superfluous irritation. The mode of billeting troops 
 continued at the advent of William III. to be still one of 
 the grievances of the people, and by proclamation in 1688, 
 he again prohibited this being done without the consent of 
 the owners, in all houses, except victualling houses and 
 houses of public entertainment. A statute of William III. 
 confirmed this prohibition, and enacted that, during the 
 war, the constables and chief magistrates were to billet 
 soldiers passing towards the sea coast on the inns and 
 public houses, but not on any private house without the 
 consent of the occupier, otherwise the occupier should 
 have his remedy against the magistrate or officer.^ By 
 another act of Anne^ the power of billeting was confined 
 either to places within ten miles of the royal residence, or 
 to garrisons where no sufficient barracks were provided, 
 or to the marches of soldiers, and in the last cases for sue 
 days only at a time. The courts of law have justly viewed 
 these statutes authorising billeting as infringements on the 
 liberty of the subject, and have given liberal damages 
 to those on whom a soldier was wrongfully billeted by 
 an officer.^ 
 
 The primary burden therefore of receiving billeted 
 soldiers now lies on publicans, who keep victualling houses, 
 and who, if they have not sufiicient room, must find other 
 good and sufficient quarters in the immediate neighbour- 
 hood.* And it is expressly forbidden to billet soldiers in 
 any private houses, or in the house of any shop-keeper, 
 whose dealing is more in other goods and merchandise than 
 iu brandy and strong waters.^ And of&cers and constables 
 
 1 1 W. & M. Sess. 2, c. 4, § 17; 11 Pari. Hist. 1395-1409. 
 2 12 Anne, c. 13, § 21. 3 Parkhouse v Foster, 1 L. Raym. 479 ; 
 2 Anne, c. 74, § 5. ^ Mutiny Act, 39 & 40 Vic. c. 8, § 63. 
 
 •'' lb. § 67. Tlic victuaUing houses are described in the act, as 
 " all inns, hotels, livery stables, ale-houses, and the houses of sellers 
 of wine by retail, whether British or foreign, to be drunk in their 
 own houses or places thereunto belonging, and all houses of persons 
 selling brandy, spirits, strong waters, cider, or metheglin by retail." 
 —39 & 40 Vic. c. 8, § 67.
 
 428 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 seeking to billet on persons not liable to it are severely 
 fined.i The Mutiny Act lays down minute regulations as 
 to the kind of rations, which the innkeeper is bound to 
 supply, down to the very pepper and salt, and the price 
 he shall receive for the same ; and also takes care that 
 the charges be paid, if necessary, out of the pay of the 
 officers and soldiers, or failing this, by the agent of the 
 regiment.^ And at most this burden of billeting cannot 
 extend to more than three days.^ At one time the 
 publican was allowed to buy out the soldier at a fixed sum,^ 
 and at another time he has refused to supply the soldiers 
 with rations at the statutory rates.^ And again the justices 
 have sometimes assessed the price of provisions at a rate 
 higher than the statutory allowance.*^ Ultimately the only 
 right course was found to be to raise the allowance so as to 
 prevent the public-houses being closed against the military 
 altogether/ A soldier when billeted can scarcely be said 
 to pay anything for lodging ; ^ but he cannot demand at 
 pleasure what room in the house he thinks fit.*' The soldier's 
 horses cannot be distrained for rent ; ^^ nor can the horses 
 be quartered beyond a certain distance apart from the 
 men.^^ 
 
 Compulsory knighthood. — It sounds singular to modern 
 ears, that our ancestors should have been compelled against 
 their will to be made knights at the call of the king. But 
 as to become a knight was usually only another name for 
 undertaking the obligation of furnishing a war-horse, or 
 taking a share in the wars, and as the dignity also exempted 
 one from the menial office of making beds, or waiting at 
 table in the house of some great baron, our wonder lessens, 
 that the knightly office should be in those times sometimes 
 compelled and sometimes solicited. A statute of Edward II. 
 made all who had forty pounds a year subject to distress, if 
 they did not accept this honour.^^ And Edward III. made 
 frequent use of the same expedient for raising money ; ^^ 
 
 ' 39 & 40 Vie. c. 8, §§ 86, 87. 2 ibid. § 66. ^ jbid. < 8 & 9 
 Will. III. c. 13; 10 Com. J. 309, 478; 11 Pari. Hist. 1413. 
 ' 12 Com. J. 79, 148. « 11 Pari. Hist. 1388, 1479; 13 Geo. II. 
 c. 10 ; 14 Geo. II. c. 9. 7 26 Com. J. 600. « Mutiny Act, 1876, 
 § 66. His Ijed-candles and cooking cost only fourpence a day. 
 ^ 1 Clode, 570. '0 Ibid. 571. » Mut. Act, 1876, § 63. 
 
 '2 1 Ed. II. Lib. Alb. b. iii. p. 1. »3 Barr. Stat. 193 ; 2 Stubbs, 
 C. H. 282.
 
 CH. v.] COMPULSORY CHUECH-GOING. 429 
 
 and so did Charles I. in his distresses.^ The Star Chamber 
 moreover assumed to line persons for not accepting kniglit- 
 hood.^ But at hist a memorable statute was passed, by 
 which thereafter no person was compellable to take the 
 order of knightliood or pay a fine for not doing so,^ and thus 
 ended the vexation of being encumbered with unsolicited 
 honours. 
 
 Compulsory attendance at church. — Compulsion was also 
 used at the time of the Eeformation to uphold the Pro- 
 testant faith and keep people in the right way. Eefusing 
 to confess or receive the sacrament was first made subject 
 to fine or imprisonment, and a second ofi'ence was felony 
 and death, and involved forfeiture of lands and goods.* 
 Those who, liaving no lawful excuse, failed to attend the 
 parish church in the time of Elizabeth were fined twelve 
 pence — at that time a considerable sum.^ This penalty 
 was afterwards altered to twenty pounds per month, but 
 those Avere exempted, wdio did not obstinately refuse.*^ The 
 penalty on all above sixteen who neglected to go for a 
 month was abjuration of the realm ; and to return to the 
 realm thereafter w^as felony." And two-thirds of the rent of 
 the offender's lauds might also be seized, till he conformed.* 
 These laws were wholly repealed in 1844 and 1846.^ 
 
 Restrictions as to names. — The law of most countries 
 seems to have been little disturbed by any details as to the 
 names which individuals bear, how they come to acquire 
 and use them, and when they may change them. Human 
 nature seems disposed to sit easily under the routine which 
 habit engenders, parents bestowing and children taking and 
 adopting their names Avithout question or complaint, as 
 
 ' Ant. Wood's Life, 19. 2 Burn's Star Chr. 85. 3 ig ch. I 
 c. 20. " 31 Hen. VIIL c. 14, § 6. « 1 Eliz. c. 2, §§ 3, 4 5 
 
 6 23 Eliz. c. 1. 7 35 Eliz. c. 1. 83 Jas. L c. 4. 
 
 9 7 & 8 Vie. c. 102 ; 9 & 10 Vic. c. 59. To these impotent and 
 falsely-conceived enactments we owe, so far as g'ood can ever be 
 indebted to evil, the immortal allegory of the Pilgrim's Progress, 
 which was composed by Bmiyan in Bedford Gaol when imprisoned 
 by the justices of the day under this kind of legal authority. 
 
 So late as 1789 Bishop Horsley, in the House of Lords, defended 
 the above law as most proper and by no means severe, though he 
 admitted that it should be allowed to be a reasonable excuse that the 
 defendant attended some Dissenting chapel instead of his parish 
 church.— 28 Pari. Hist. 126.
 
 430 OF THE SECURITY OF THE PERSON. [ch. v 
 
 naturally as the rain falls or the sun shines. Some savage 
 tribes, it is true, attribute a mysterious importance to names 
 of their children, and proceed by rules which often interest 
 the philologer, but can scarcely attract much notice from 
 the lawyer. The importance and necessity of a name are 
 most conspicuously shown in conveyances of property, 
 in registers of marriage, in bequests, in wills, and in legal 
 procedure ; and when a mistake occurs in description 
 serious difficulties arise, which are usually only overcome 
 by an expensive array of evidence to vindicate the identity 
 of person. The safety and security of all persons are 
 obviously much enhanced by keeping and adhering to 
 one distinctive name, and though it is no presumption of 
 law, that a change of name is primd facie evidence of 
 fraud, yet such a step almost always requires some 
 explanation, and it is one of the artifices often resorted 
 to for the concealment as well as the perpetration of 
 crime. 
 
 How names usually acquired. — Herodotus observed, that 
 the Lycian children took their names from the mother, 
 and not the father, and the mother's genealogy was alone 
 counted.'- And the same custom was said by Polybius to 
 prevail elsewhere ; and modern travellers also find it in 
 Indian races.^ In Formosa the husband passed into the 
 wife's family, and in some countries the names were con- 
 fined to families ; in others they distinguished only persons.^ 
 The earliest practice in this country was for a person to 
 have a christian name and no surname, but merely to add 
 the locality or place of residence, as John of Dale.^ And 
 in the principality of Wales the simplicity as well as the 
 confusion of earlier times in applying ancestral names have 
 often been conspicuous.^ Though a christian name had 
 been given in baptism, it used to be said, that if another 
 christian name was given afterwards on confirmation, the 
 latter should be recognised as the true name. The stage 
 of confirmation was deemed at one time convenient for a 
 cliange being made, since it was the practice once for tlie 
 bishop to pronounce the person's name at the ceremony of 
 
 ' Herod, b. i. ^ Lubbock's Orig. of Civ. 107. 3 Montesq. 
 
 b. xxiii. c. 4. ^ Barlow v JJateman, 3 P. Wms. 05 ; 2 Br. P. C. 272. 
 ^ Lower's Patron. Brit. 22.
 
 cii. v.] CHANGE OF ONE'S NAME. 431 
 
 confirmation, and Sir Francis Gawdy acquired a surname in 
 that way.^ And it was once thought that though the sur- 
 name might be changed, the christian name was indelible. 
 But that delusion has been dispelled."^ The reason of the 
 former impression may have been, that the surname was 
 said to be often taken from the arts or locality, while the 
 christian name was really deemed the distinctive name.^ 
 But the essential thing now in the eye of the law is the 
 name by which a person is commonly known, and whether 
 he was baptised or not by such name.^ And hence, when 
 a certain marriage act required the true christian and 
 surname of the parties to be registered, it was held a 
 compliance with that act to state the name by which the 
 party had been usually known, rather than the baptismal 
 name, if there had been a change, and even though the 
 new name had been assumed by a deserter for purposes 
 of concealment.^ 
 
 Cha7i(je of name how far competent. — Some difficulty has 
 occurred from the wish which may naturally occur, for 
 various reasons, to change the name which an individual 
 has once borne. The law of England has not found it 
 necessary to declare it to be a penal offence to change one's 
 name, nor is any liability whatever incurred for the mere 
 change, though there necessarily results some inconvenience 
 in any sudden operation of that kind. During the civil 
 war it is said to have been a frequent occurrence for 
 persons to change their name for purposes of concealment.*^ 
 The only matter of doubt has been as to the proper mode 
 of effecting the change ; but the rule is, that any one can 
 at any time change his name, if he choose deliberately 
 
 ' Gawdy's Case, 1 Inst. 3 ; 2 Burn's Ecc. L. " Confirai." ^ R v 
 Billingburst, 3 M. & S. 254. 3 ibid. ; Button v Wrightman, Popli. 
 57. 4 Walden v Plolman, 6 Mod. 115; R. v Billingburst, 3 M. 
 & S. 250. 
 
 5 R. V Burton-on-Trent, 3 M. & S. 537. 
 
 The cases as to fraudulent use of names at marriage belong to the 
 division of law intituled " Security of Marriage." Cases as to con- 
 ditions annexed to devises or bequests, that the devisee or legatee 
 shall use the name of the testator, belong to the division of law 
 intituled "Security of Property." The law as to registration of 
 births is stated post, Chap. is. "Age." And the effect" of mistakes 
 in the name in legal procedure belongs to the division of the law 
 intituled " Judicature." 6 B^rr. Stat. 372.
 
 432 OF THE SECUEITY OF THE PERSON. [CH. v. 
 
 to do so and to act accordingly. And the Eoman law also 
 allowed the same liberty.^ 
 
 There is no ceremony or legal act required, in order to 
 effect a change of name, except only the declaration of a 
 settled purpose and the adoption of some means of making 
 it known. Any mode of telling one's neighbours and the 
 public, that a new name has been and is intended to be 
 adopted and recognised, is sufficient to constitute a change 
 of name, and no deed need be executed, and no royal 
 licence or act of parliament need be obtained for this 
 purpose. These are only at best another means of publicity, 
 and nothing more. Lord Eldon said the king's licence is 
 nothing more than permission to take the name, but does 
 not give it ; and that a man taking such new name may 
 take a legacy if left to him under the old narae.^ And 
 Tindal, C. J., said, " The royal sign manual, is a mode which 
 persons often have recourse to, because it gives a greater 
 sanction to it, and makes it more notorious ; but a man 
 may, if he pleases, and if it is not for any fraudulent 
 purpose, take a name, and work his way in the world with 
 his new name as well as he can." And hence there was no 
 real necessity for any person to apply for a royal sign- 
 manual to change the name.^ And Lord Tenterden said 
 that a name assumed by the voluntary act of a young man 
 at his outset into life, adopted by all who knew him, and by 
 which he is constantly called, becomes for all purposes as 
 much and effectually his name, as if he had obtained an act 
 of parliament to confer it upon him.* The general use and 
 habit is everything, when the true name of a person at a 
 particular time is required.^ 
 
 Though any man may at discretion change his name by 
 
 ' Cod. b. ix. tit. 25. The •Eoman law was severe in case of a 
 person who assnraed a false name, for he was guilty of forgery 
 Ifalsum), the punishment for which was banishment or crucifixion. 
 — Diy. xlviii. 11, 18. In Lucca a person was fined for changing his 
 name, and in case of nonjtayment liis tongue was cut off. — St. Luce. 
 c. 88 ; Barr. Stat. 372, 381. Pope Pius 11. put to the rack Platina 
 i'or instigating changes in people's names. — Platina's Popes by 
 Ricaut, im, AW. 
 
 "^ Leigh V Leigh, 15 Ves. 100. ^ Davies v Lowndes, 1 Bing. 
 
 N. .0. 618. 4 Luscombe v Yates, 5 B. & Aid. f>44 ; Barlow v Bate- 
 man, 3 P. Wms. G5. •'' Per L. Stowell, Frankland v Nicholson, 
 3 M. & S. 260.
 
 •H. v.] RESTRICTIONS AS TO FOOD. 433 
 
 adopting and using and making known such change, this 
 is sometimes deeply resented by neighbours, who are slow- 
 to follow anything like another's caprice ; and it is this 
 difficulty in founding the reputation that has often driven 
 persons to resort to an act of parliament,"a royal licence, or 
 a deed enrolled in chancery, all of which are mere super- 
 fluous forms and nothing more, yet are deemed useful to 
 precipitate more quickly the general acquiescence of the 
 public in the change. The formality of a deed is indeed 
 nothing more nor less than a solemn representation of a 
 person's wish and intentiouj 
 
 For about 200 years it has been a practice for the Home 
 Secretary, on application of parties, to obtain this royal 
 licence on certain fees being paid ; and testators often 
 annex the obtaining of this royal licence as a condition to 
 the enjoyment of property.^ 
 
 A\nien once it is satisfactorily shown that a new name 
 has been permanently adopted, courts will give effect to it ; 
 and so far as it is useful they are sometimes required by 
 l)arties to do so. Thus if a solicitor change his name, the 
 High Court will order the roll to be amended accord- 
 ingly.^ And where a justice of the peace changes his 
 name, the Lord Chancellor will alter the commission of the 
 peace accordingly.^ The reason of this usage can be no 
 other than this, that if the change of name adds to a man's 
 happiness or is of vital importance in his eyes, does no 
 harm to others, and is obviously not used as a means of 
 fraud, it is right that all official authorities should respect 
 this resolution and give effect to it in every legitimate way. 
 
 Jiestrictions as to food. — One can scarcely imagine on 
 what ground the law could ever have interfered with a 
 matter so exclusively the affair of the individual person 
 as the eating of food ; and though the case of paupers and 
 jirisoners is as exceptional as that of a beleaguered garrison, 
 their food being supplied at the expense of third parties, 
 who naturally begrudge and stint it, the liberty of the 
 
 1 Per Sir G. Grey ; Hans. P. Deb., Sess. 1863. A stamp duty 
 is payable for royal licence of fifty pounds if under a will, of ten 
 pounds if a voluntary application. 
 
 •^ Ex p. Dags^ett, 1 L. M. & P. 1 ; Ex p. James, 9 C. B. 221, 5 Exch. 
 310 ; Ex p. Dearden, 5 Exch. 740. " Re Herbert of Clytiia, Pari. 
 Pap. 96 (Sess. 1863). See Falconer on Surnames. 
 
 VOL. I. F F
 
 434 OF THE SECURITY OF THE PERSON. [CH. v. 
 
 rest of the community in tliis matter can scarcely in any 
 contingency legitimately provoke legislative interference. 
 But this view was not always taken, though it is equally 
 true, that some collateral object, such as repressing luxury, 
 or supporting religion, or helping to maintain some industry 
 has generally been the ostensible motive of so minute a 
 control over one's personal tastes. And ancient states 
 seem usually to have professed some kindred object for this 
 kind of legislation.^ 
 
 Our own legislature had also for centuries very decided 
 opinions as to the food that ought to be allowed. An 
 ordinance of Edward III., in 13;-]6, prohibited any man 
 having more than two courses at any meal. Each mess 
 was to have only two sorts of victuals, and it was prescribed 
 how far one could mix sauce with his pottage, except on 
 certain feast days, when three courses at most were allow- 
 able.^ The Statute of Diet of 1363 enjoined, that servants 
 of lords should have once a day flesh or fish, and remnants 
 of milk, butter, and cheese ; and above all, ploughmen were 
 to eat moderately.^ And the proclamations of Edward 
 IV. and Henry VIII. used to restrain excess in eating 
 and drinking. All previous statutes as to abstaining from 
 
 ' The Licinian law limited the quantity of meat to be used. — 5 
 Univ. Hist. 12. The Orcian law limited the expense of a private 
 entertainment and the number of guests (temp. Cato). And for 
 like reasons the censors degraded a senator because ten pounds' 
 weight of silver plate was found in his house. — Aul. Gell. h. iv. c. 8; 
 Val. Max. b. ii. c. 9. Julius Caesar attempted to reform the Roman 
 people by the rigour of his sumptuary laws. He restrained certain 
 classes from using litters, embroidered robes and jewels, limited the 
 extent of feasts, and enabled his bailiffs to break into the houses of 
 rich citizens and snatch the forbidden meats from off the tables. 
 And we are told that the markets swarmed with informers, who pro- 
 fited by proving the guilt of all who bought and sold there. — Suet. 
 in Jul. So in Carthage, a law was passed to restrain the exorbitant 
 expenses of marriage feasts, it having been found that the great 
 Hanno took occasion of liis daughter's marriage to feast and corrupt 
 the senate and the populace, and gained tliem over to his designs.— 
 Justin, b. xxi. 
 
 The Vhennic Court established by Charlemagne in Westpliaha put 
 every Saxon to death who broke his fast during Lent. — Volt. Becc. 
 c. 13. James II. of Arragon, in 1234, ordained that his subjects should 
 not have more than two dishes, and each dressed in one way only, 
 unless it was game of his own killing. — Montesq. h. vii. c. 5. 
 
 2 10 Ed. III. St. 3. 3 37 Ed. III. c 1.
 
 CH. v.] RESTRICTIONS AS TO DRESS. 436 
 
 meat and fasting were repealed in the time of Edward VI. ; 
 but by new enactments, and in order that fishermen may- 
 live, all persons were bound under a penalty not to eat 
 flesh on Fridays or Saturdays, or in Lent, the old and the 
 sick excepted.^ The penalty in Queen Elizabeth's time was 
 no less than three pounds or three months' imprisonment; 
 but it was at the same time added, that, whoever preached or 
 taught, that eating of fish was of necessity for the saving 
 of the soul of man, or M^as the service of God, was to be 
 punished as a spreader of false news.- And care was taken 
 to announce, that the eating of fish was enforced, not out 
 of superstition, but solely out of respect to the increase of 
 fishermen and mariners.^ The exemption of tlie sick from 
 these penalties was abolished by James I., and justices 
 were authorised to enter victualling houses and search for 
 and forfeit the meat found there/ All these preposterous 
 enactments have been swept away in the reign of Victoria. 
 Restrictions as to dress. — Of all the petty subjects attract- 
 ing the cognisance of the law none seems to have given 
 more trouble to the ancient and mediaeval legislatures than 
 that of dress. And this seems to have been mainly due to 
 the confusion of ideas, the ignorance of trade, and of the 
 elementary axioms of political economy, as well as of the 
 province of the law itself, bearing on that subject. Sub- 
 sequent experience and reflection have shown the folly and 
 impotence of legislatures attempting to meddle with matters 
 which are as unstable as water, and as irresistible as the 
 tide. Yet views of morality, of repressing luxury and 
 vice, of benefiting manufactures, of keeping all degrees of 
 mankind in their proper places, have induced the legisla- 
 ture to interfere, where interference, in order to be thorougli, 
 would require to be as endless as it would be objectless. 
 But as our own legislature was not behind its neighbours 
 in this attempt to control what satirists and wits can do 
 much better, it is useful to look back on some of these 
 graver follies of the past.^ 
 
 » 2 & 3 Ed. VI. c. 19. 2 5 Eliz, c. 5. 3 ib. RR 15 37. 
 
 * 1 Jas. I. c. 2'J. 
 
 ^ Solon prohibited women going out of the town with more than 
 three dresses. — Plut. Solon. Zaiencus is said to liave invented an 
 ingenious method of circuitouslj' putting down what he thought bad 
 habits, namely, by prohibiting things with an exception, so that the 
 
 F F 2
 
 436 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 The views and objects of our legislature as to the general 
 subject of dress, however preposterous in our eyes, 
 
 exneption should, in the guise of an exemption, really cany the sting 
 and operate as a deterrent. Thus, he forbade a woman to have 
 more than one maid unless when slie was drunk ; he forbade her to 
 wear jewels or embroidered robes, or go abroad at night, except she 
 was a prostitute ; he forbade all but panders to wear gold rings or 
 tine cloth. And it was said he succeeded admirably in this legisla- 
 tion. — Diod. Sic. xii. 20. The Spartans had such a contempt for 
 cowards, that those who fled in battle were compelled to wear a low 
 dress of patches and shape, and moreover to M-ear a long beard half 
 shaved, so that anyone meeting them might give them a stroke. — 
 Plut. Ages. The Oppian law at Rome restricted women in their 
 dress and extravagance. — Tacit Ann. h. iii. c. 33. And the Roman 
 knights had the privilege of wearing a gold ring. — Suet. Jul. Ces. 
 The ancient Babylonians held it to be indecent to wear a walking- 
 stick without an apple, a rose, or an eagle engraved on the top of it. 
 — Herod, b. i. The first Inca of Peru is said to have made himself 
 popular by allowing his people to wear ear-rings — a distinction for- 
 merly confined to the royal family. — 14 Univ. Hist. 377. By the 
 code of China the dress of the people was subject to minute regulation, 
 and any transgression was punished with fifty blows of the bamboo. 
 — Staunton's Code, 185. And he who omitted to go into mourning on 
 the death of a relation, or laid it aside too soon, was sinuilarly punished. 
 Don Edward of Portugal, in 1434, passed a law to suppress luxury 
 in dress and diet, and with his nobles set an example. — 8 Univ. Mod. 
 Hist. 432. In Florence a like law was passed in 1471. And in 
 Venice laws regulated nearly all the expenses of families, in table, 
 clothes, gaming, and travelling. — 10 Uniti. Mod. Hist. 276. A law 
 of the Muscovites obliged the people to crop their beards and shorten 
 their clothes. — Montesq. b. xix. c. 14. In Zurich a law prohibited all 
 except strangers to use carriages ; and in Basle no citizen or inliabit- 
 ant was allowed to have a servant behind his carriage. — 5 Pink. Voy. 
 666, 696. About 1294, Philip the Fair of France by edict ordered 
 how many suits of clothes, and at what price, and how many dishes 
 at table should be allowed, and that no woman should keep a cur. — 
 3 Guizot, Civ. Fr. Lect. 15. 
 
 The Irish laws, fifteen centuries before Christ, regulated the dress, 
 and even its colours, according to the rank and station of the wearer. 
 — 3 (y Curry, 31. And the Brehon laws forbade men to wear brooches 
 so Inng as to project and be dangerous to those passing near. — 
 3 QCurry, 16.3. In Scotland a statute enacted that women should 
 not come to kirk or market with their faces covered ; and that they 
 should dress according to their estate. — Jas. II. 1457. In the City 
 of London, m the thirteenth century, women were not allowed to 
 wear, in the highway or at market, a hood furred with other than 
 lamb-skin or rabbit-skin. — Ril. Mem. Lond. 20. In the middle ages 
 it was not unirequent to compel prostitutes to wear a particular 
 dress, so that they might not be mistaken for otner women. And
 
 CH. v.] RESTRICTIONS AS TO DRESS. 437 
 
 ■were grave and serious enough. The legislature was so 
 confident of its ground that it recited that " wearing inordi- 
 nate and excessive apparel was a displeasure to God, was 
 an impoverishing of the realm and enriching other strange 
 realms and countries, to the final destruction of the 
 husbandry of this realm, and leading to robberies." ^ The 
 real object was no doubt the encouragement of native 
 industry, according to the then current notions of en- 
 couragement, and, probably, also to carry out a view which 
 has always prevailed, that of keeping people in their proper 
 places. None were to wear foreign cloth, and none under 
 a certain income were to wear furs on their clothes on pain 
 of forfeiture.^ Tlie Statute of Diet and Apparel in 1363, and 
 later statutes, minutely fixed the proper dress for all classes, 
 according to their estate, and the price they were to pay ; 
 liandicraftsmen were not to wear clothes valued above forty 
 shillings, and their families not to wear silk, fur, or silk 
 velvet ; and so with gentlemen and esquires, merchants, 
 knights, and clergy, according to gradations. Ploughmen 
 were to wear a blanket and a linen girdle.^ No female 
 belonging to the family of a servant in husbandry was to 
 wear a girdle garnished with silver.* Every person beneath 
 a lord was to wear a jacket reaching his knees, and none 
 but a lord was to wear pikes to his shoes exceeding two 
 inches.^ Nobody but a member of the royal family was to 
 wear cloth of gold or purple silk, and none under a knight 
 to wear velvet, damask, or satin, or foreign wool, or fur of 
 sable.^ It is true, notwithstanding all these restrictions, 
 that a licence of the king enabled the licensee to wear 
 anything.'' For one whose income was under twenty pounds 
 to wear silk in his nightcap was to incur three months' 
 imprisonment, or a tine of ten pounds a day.^ And all 
 above the age of six, except ladies and gentlemen, were 
 bound to wear on the Sabbath day a cap of knitted wool.^ 
 
 These statutes of apparel were not repealed till the reign 
 of James I.^^ 
 
 this was the law in the City of London, as appears from records 
 of 1351 and 1382.— Riley, Mem. Lond. 266, 458. 
 
 1 3 Ed. IV. c. 5 (1463); 1 Hen. VIII. c. 14. Ml Ed. III. 
 c. 2, 4'. 3 37 Ed. III. 4 3 ga. IV. c. 5. ^ ^i,\^ (1403) ; 
 
 22 Ed. IV. c. 1 (1482). 6 22 Ed. IV. c. 1. "1 Hen. VIII. c. 14 ; 
 6 Hen. VIII. c. 1. « 1 & 2 Pli. & M. c. 2. ^ 13 Eliz. c. 19. 
 
 i** 1 Jus. I.
 
 438 OF THE SECURITY OF THE PERSON. [ch. v 
 
 Compuhory change of dress. — Sometimes, though rarely, 
 a legislature has gone the length of suddenly compelling an 
 entire change of dress among a people, for reasons at the 
 time thought urgent.^ 
 
 Men xoeariwj vjoDicns clothes. — There has also been some 
 trouble occasioned in the law by attempts of one sex to 
 wear the clothes usually worn by the other sex.^ Though 
 it is not in our law an offence punishable, ^er sg, in any 
 way for one sex to wear the clothes usually worn by the 
 other, yet it is often a material ingredient in the considera- 
 tion, whether this act has not been the means used in order 
 to commit some specific offence. And the circumstances, 
 under which the wearing of clothes of the opposite sex 
 occurs, supply tlie key to this inquiry. To wear such 
 clothes at a masquerade, or theatre, or place of decorous 
 entertainment, is not, in any sense, punishable, since the 
 circumstances usually negative all but an innocent or harm- 
 less intent. But where a male puts on female attire, or a 
 female puts on male attke, in order to obtain facilities for 
 closer companionship, unless indeed very peculiar circum- 
 stances combine to negative ulterior oljjects, this will 
 
 ' In China a law was passed to compel the Tartars to wear Chi nese 
 clothes, and to compel the Chinese to cut their hair, with a view to 
 unite the two races. And it was said there were many who preferred 
 martyrdom to obedience. — 7 Pink. Voy. 175. 
 
 So late as 174G a statute was passed to punish with six months' 
 imprisonment, and on a second offence with seven years' transporta- 
 tion, the Scottish Highlanders, men or boys, who wore their national 
 costume or a tartan plaid, it being conceived to be closely associated 
 with a rebelhous disposition. After thirty-six years however the 
 statute was repealed. While the act was in force, it was evaded 
 by people carrymg the clothes in a bag over their shoulder. The 
 prohibition was hateful to all, as impeding their agility in scaling the 
 craggy steeps of their native fastnesses. In 1748 the punishment 
 assigned by the act of 1746, 19 George II. c. 39, was changed into 
 compulsory service in the army. — 21 Geo. II. c. 34. 
 
 2 Plato says it is one of the unwritten laws of nature, that a man 
 shall not go naked into the market-place, or wear woman's clothes. — 
 Diog. Laerl. b. iii. Plato. The Mosaic law forbade men to wear 
 women's clothes, which was thought to be a mode of discountenan- 
 cing the Assyrian rites of Venus. — Deut. xxii. 5.] The early Christians 
 (ollowing a passage of St. Paul (1 Cor. xi.) and also one in Deut. 
 xxii. 5, treated the practice of men and women wearing each other's 
 clothes as confounding the order of nature, and as liable to the 
 heavy censure of anathema. — Cone. Gangren. Can. 13, 17,
 
 .H. v.] COMPULSORY KEEPING OF ARMOUR. 439 
 
 readily be seized upon as a suspicious symptom, and is 
 easily convertible in the minds of a jury into evidence of 
 an attempt to incite to the commission of some specific 
 olTence. And the courts hold, that an attempt or solicita- 
 tion to commit an infamous crime is itself an indictable 
 misdemeanour. And an attempt to commit a felony or a 
 misdemeanour is also a misdemeanour.^ And it has more- 
 over been held, that such attemjtt is a misdemeanour, 
 ^^■hether the principal offence is a misdemeanour at common 
 law or created bv statute.^ 
 
 Painting the face. — There was formerly a rigorous punish- 
 ment of persons poaching game with blackened faces. 
 Those who hunted in forests with their faces disguised 
 were declared to be felons.^ And as disguises led to crime, 
 and mummers often were pretenders, all who assumed 
 disguise or visors as mvunmers, and attempted to enter 
 houses or committed assaults in highways, were liable to be 
 arrested and committed to prison for three months without 
 bail.* Even Bacon said he wondered there was no penal 
 law against painting the face ; ^ but he seemed still to 
 believe in sumptuary laws.^ No occasion now remains for 
 ])unishing the practice of blackening or painting the face, 
 though in relation to the practices of night poachers and 
 burglars it is no uncommon expedient in their precautions 
 against detection. But though nothing now turns on this 
 circumstance alone, yet it seldom fails to assist a jury in 
 discovering from the accomj)anying facts the motives and 
 intentions of those who resort to it. 
 
 Coni'pulsory duty as to arms. — However essential it may 
 be in an organised and settled society to keep part of 
 its subjects in a condition to be ready for war, and to main- 
 tain a standing army as the only efl'ectual means of 
 attaining that condiliun, the difticulty is great in defining, 
 
 ' R. V Higgins, 2 East, 21 ; R. u Phillips, 6 East, 4G4. 2 ^ j, 
 Roderick, 7 C. & P. 795 ; R. v Butler, G C. & P. 368. '^ 1 Hen. 
 
 VII. c. 8. 
 
 ■* 3 Hen. VIII. e. 9. The Mosaic law prohibited the practice of 
 using alhetina, or putting an indelible colour on the skin, as was done 
 on' occasions ot mourning, or in renieiubrance of the dead, or in 
 honour of some idol. — Levit. xix. 28. And two fashions of wearing 
 the beard and hair were prohibited, as has been supposed, on account 
 of idolatrous associations. — Lev. xix. 27. 
 
 5 De Augm. b. iv. •* Bac. Ess. 15.
 
 440 OF THE SECURITY OF THE PEESON. [ch. v. 
 
 how far it shall be compulsory on any one of the citizens 
 to take a share in this essential duty — who is to determine 
 — by whom, and when, and on what terms the service is to 
 be rendered — or on what conditions exemption may be pro- 
 cured, if service is allowed in any case to be avoided. Most 
 of these considerations, and the best mode of overcoming 
 them, are part of the duty of government, and are essentially 
 interwoven with its main functions. With these it is at 
 present no part of our subject to deal. But it may for the 
 moment be assumed, that some citizens must necessarily be 
 found, willingly or unwillingly, to forsake all other business 
 and adhere to the temporary profession of soldiers. Tlie 
 main point at present is to state, how far compulsion is 
 used to force any citizen into this profession against his 
 will, for on this subject all legislatures and laws have 
 differed from time to time. And there is also another 
 question of kindred nature, namely, how far every indi- 
 vidual is bound to have arms in his possession ready fur 
 emergencies, and on the other hand how far he is prohiljited 
 from possessing and carrying about such arms. 
 
 Compulsory keeping of armour. — Our ancient laws seem 
 to have contemplated a necessity and duty in each citizen t(» 
 be ready on an emergency to assist in war. Every man 
 was bound to have certain armour in his house, such as 
 swords, knives, bows and arrows, according to his estate ; 
 and a regular inquisition was made twice a year, to see 
 that all had these essential guarantees for keeping the 
 peace, and those who had them not were to be fiiied.^ At 
 tne same time no man was held bound to go out of his 
 shire, unless a strong enemy suddenly came.^ The legisla- 
 ture in the time of Henry VIII. recited that our ancestors 
 " with the long bow did notable acts and discomfitures of 
 war against the infidels and others, subdued regions, and 
 operated to the terrible dread and fear of all strange 
 nations." ^ Accordingly all persons under sixty, except 
 priests and judges, were bound to keep a long bow and 
 arrows in their houses ready continually to exercise in 
 shooting. Fathers and governors of children were bound 
 to bring up those of a tender age in the knowledge of 
 shooting. Every youth of seven to fourteen was to be pro- 
 
 ' 13 Ed. I. St. Wiiit. c. 26. 2 1 Ed. III. st. 2, c. 5. 
 
 3 33 Hen. VIII. c. 9.
 
 CH. v.] RIGHT OF WEARING ARMS. 441 
 
 vided by his parent with a long bow. Each male servant 
 of the same age was to be also provided, and the expense 
 to be deducted from wages. Every town and city was to 
 have a butt for shooting at. Justices of assize and of the 
 peace were charged to inquire and fine those who disobeyed 
 the statute.^ While the long bow was praised, the posses- 
 sion of the cross bow, being an implement used for deer 
 killing, was prohibited, unless with the king's licence, or 
 unless the owner was a lord.- At length cross bows and 
 hand-guns were allowed to be used by all persons having 
 1001. a year in lands ; or living within seven miles of the 
 sea or the Scottish border.^ And at a later period persons,' 
 having five pounds a year, were bound to keep a coat of 
 mail, a halbert, a long bow, arrows, and steel cap.* 
 
 Right of ivearing arms, — While the possession of arms 
 was thus enjoined, it was a different thing whether each 
 was to be allowed to carry arms about wherever he went. 
 The wearing of arms was repeatedly forbidden by royal 
 mandate in the time of Edward III., especially at night 
 after curfew ; ^ and a penalty was imposed on those who 
 went with them in London either by day or night.^ But 
 in all countries where personal freedom is valued, however 
 much each individual may rely on legal redress, the right 
 of each to carry arms— and these the best and the sharpest 
 — for his own protection in case of extremity, is a right of 
 nature indelible and ii-repressible, and the more it is sought 
 to be repressed the more it will recur. If there is any 
 danger in this right being clung to as a vital condition of 
 personal security and self-defence, there are modes of 
 taking the proper measures to wean subjects from the 
 dangerous indulgence. In order to do so it is above all 
 things necessary to create a confidence in the equality and 
 impartiality and fitness of the laws and their administra- 
 tion ; and this cannot be done with reasonable men, unless 
 these have some voice in settling those laws and moulding 
 them to the necessities of the time. As has been shown 
 
 ' 3 Hen. VIII. c. 3 ; 33 Hen. VIII c. 9. 2 19 Hen. vil c 4 
 3 14 & 15 Hen. VIII. c. 7 ; 25 Hen. VIII. c. 17 ; 33 Hen. VIII. c 6 
 < 4 & 5 Ph. & M. c. 2. 5 Riley's Lib. Alb. Pref. 46. 
 
 6 Lib. Alb. b. iii. p. 3. In Venice it was said to have been once a 
 capital offence to carry arms — a law, which Montesquieu says was 
 contrary to nature. — Montesq. b. xxvi. c. 24.
 
 442 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 in a previous part of this work/ the more the i)eop]e, 
 \)j which is meant well-selected representatives uf the 
 people, who are governed by the laws, have to do with 
 framiuG; and reformimr them from time to time, the nearer 
 tliey approach to self-made laws, and the more readily and 
 easily they become assimilated to the thoughts and business 
 of daily life ; the more eager and satisfied all citizens are 
 to range themselves on the side of the law and give to 
 it their entire confidence. When this condition of things 
 is attained, there is an end to the barbaric habit of clothing 
 oneself in triple coats of mail, and to girding on daggers 
 and loaded arms. Each individual, inspired with this 
 confidence, ceases thereafter to think of anything beyond 
 more peaceful weapons. The processes of courts, the 
 bailiffs, and the peace officers then become to him as ample 
 an escort, as if all the posse comifxUus, the land and sea 
 forces, were always at his side and waiting on his signal. 
 
 It was not to be wondered after the experience of the 
 civil wars, and all that led to them and followed from them, 
 that the champions of our constitutional freedom should 
 have retained in their inventory of personal securities the 
 right of each individual to bear arms. It was put pro- 
 minently forward in the Bill of Eights, owing to the right 
 of wearing arms having been previously refused to Pro- 
 testants, while it was allowed to Papists. The Bill of 
 Plights expressly declared, that thenceforth " the subjects 
 which are Protestants may have arms suitable to their 
 conditions, and as allowed by law." ^ Since that time, 
 though the use of arms has been wholly discontinued, and 
 their name almost forgotten for purposes of personal 
 defence, the law remains unimpaired as it was then 
 deliberately settled. 
 
 Covipuhory service as a soldier. — A duty arising out of 
 this subject of bearing arms, and in some respects a cor- 
 relative duty, is that of serving the state as a soldier. That 
 some citizens nmst be found able and willing to serve in 
 that capacity is an axiom of government in modern as 
 well as ancient nations. And how far any one can, against 
 his will, be forced to do this duty is an important feature 
 in every law, and closely touches every man's liberty of 
 action. It was said by a judge in Hampden's case, that 
 1 See ante, pp. 37, 38. 2 w. & M. Sess. 2, c. 2.
 
 UH. v.] SERVING AS A SOLDIER. 443 
 
 every man was bound in his own person to serve the king 
 ior the defence of the reahn.^ And however loose was 
 the early practice, there seems to have been for centuries a 
 vague acquiescence in more or less of compulsion in 
 military service. The tenure of lands in feudal times 
 compelled the holders of knights' fees to give forty days' 
 vservice each year. The assize of arms enacted by Henry 
 II. compelled each, according to his estate, to find arms. 
 And commissions of array were the occasional means of 
 seeking out men able and ready to obey the call to arms. 
 A statute of Edward III., however, prohibited arbitrary 
 conscription and compulsory pressing of soldiers.^ A 
 usage had sprung up of pressing soldiers for service, 
 whether in Ireland or foreign expeditions. But the Long 
 Parliament, reciting, that, by the laws of the realm, none 
 of his majesty's subjects ought to be impressed or com- 
 pelled to go out of Ills country to serve as a soldier in the 
 wars, except in case of necessity, of the sudden coming in 
 of strange enemies into the kingdom, or except they be 
 otherwise bound by the tenure of their lands and posses- 
 sions, passed an act authorising the crown to impress for 
 the Irish rebellion.^ The Long Parliament thus condemned 
 the practice of impressment for the army as a general rule.* 
 
 ' 3 St. Tr. 1185. 
 
 '■^ The laws of Moses, like tliose of all subsequent legislatures, made 
 it imperative, that all persons able to bear arms, in other words, all 
 males above twenty years of age, should be subject, on eniergencies, 
 to give their services as soldiers, against the common enemy. — 
 Numb. i. 3-46 ; xxvi. 2. A few exemptions were allowed, such as 
 those who had built a house, but not yet taken possession ; who had 
 jiianted a vineyard, but not eaten of the produce ; wlio had just mar- 
 ried, or were about to marry a wife. — Deut. xx. 5, 6, 7 ; xxiv. 5. 
 Kvery Athenian between the age of eighteen and sixty was bound to 
 serve in the army. Each Roman eques was allowed a horse at the 
 public expense, the orphans and unmarried women contributing 
 lunds for ti.e purpose. — 1 Niehh. Hint. 4G1. pjvery freeborn Roman 
 between seventeen and forty-six was liable to serve in the army, 
 and if a defaulter he was liable to strijaes or fines, or confiscation of 
 ])roperty, or imi)iisonment, or even to be sold as a slave. — Smith, 
 Diet. " Exercitus." 3 16 Ch. I, c. 28. 
 
 •* "The commission of array arose out of a confusion of rights and 
 duties. The duty of every man to arm himself for the purpose of 
 defence, and for-the maintenance of the public peace, a duty which, 
 in the form of the fijrd, lay upon every landowner, and, under the 
 Assize of Arms and Statute of Winchester, on the whole communu
 
 444 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 By a statute of Anne, justices of the peace were authorised 
 to press as soldiers all who had no lawful trade or sufficient 
 to live upon : ^ and the press laws have generally been 
 defended on the ground, that such legislation is no re- 
 striction on liberty, because all are by the law of the land 
 under an obligation to fight the country's battles.^ At- 
 tempts had been sometimes made also to compel imprisoned 
 debtors, to compel paupers and criminals, to serve in the 
 army. And at later dates commissioners were authorised 
 to seize those who had no means to support themselves.^ 
 The prerogative of pressing soldiers having thus been dis- 
 continued, an impressment was authorised by statute, when 
 the American War in 1779 occurred, of all idle and dis- 
 orderly persons, not following any lawful trade or having 
 some substance sufficient for their maintenance.* Since 
 then bounties and the ordinary attractions by enlistment 
 have sufficed as a means of raising sufficient soldiers for 
 emergencies. 
 
 Enlistment of soldiers now an ordinary contract. — While 
 impressment of soldiers for the army is now neither legal 
 nor usually authorised even by parliament, the finding and 
 engaging of men has become little else than an ordinary 
 contract of service, which one may accept or refuse at 
 discretion. But as there are some slight peculiarities 
 attending the early stages of enlistment, which bear closely 
 
 liberorum, the duty of the sheriff to examine into the efficiency of 
 equipment, as a part of the available strength of the shire, the right 
 of the king to accept a quota from each community to be maintained 
 by the contributions of those who were left at home, an acceptance 
 which liad been welcomed by the nation as a relief from general 
 obligations, such duties and rights were of indisputable antiquity 
 and legality. The right of the king to demand the service of labourers 
 and machinists at fair wages, was a part of the system of purvey- 
 ance, and the impressment adopted by Edward I. was prol)ably a 
 reform rather than an abuse of that right. Yet out of the combina- 
 tion of these three, the assize of arms, the custom of furnishing a 
 quota, and tlie royal right of impressment, sprang the unconstitutional 
 commission of array. This existed in full i'orce in the worst times 
 of Edward 11. and Edward III. but dated back to William Rnfus. 
 Edward I. paid the wages of iiis forced levies. Under Edward II. 
 the counties and townships had to pay them." — 2 Stubbs, C. H. 639 ; 
 
 2 nullum Const. II. 129. 
 
 ' 2 & 3 Anne, c. 13 ; 6 Pari. Hist. 335. 2 15 Parl. Hist. 888. 
 
 3 30 Geo. II. c. 8. " 19 Geo. III. c. 10 : 20 Pari. Hist. 114.
 
 CH. v.] ENLISTMENT AS A SOLDIER. 445 
 
 on personal liberty, it will be proper to notice these at this 
 place. 
 
 When a person is enlisted into her majesty's service, he 
 is allowed a period of ninety-six hours, and he is obliged to 
 take at least twenty- four hours to make up his mind, whether 
 he will go on with the engagement or withdraw, and he 
 may within the interval, in presence of a justice, rescind his 
 engagement by repaying his enlistment money and smart 
 money.^ If he cannot make the payment, he must either 
 be attested or be treated as a rogue and vagabond, and 
 committed for three months to prison.^ And where an 
 apprentice enlists, concealing his apprenticeship, he can 
 only be reclaimed by the master in certain cases and within 
 a month, on verifying the facts before a magistrate.^ 
 
 Punishment of soldiers deserting. — Though, when a soldier 
 has once entered the service, his subsequent conduct and 
 all the remedies relating to it belong merely to the contract, 
 and jflow out of it as naturally as in the case of other 
 contracts, yet there are some peculiarities, both as regards 
 desertion of the service and the arrest and punishment for 
 offences committed during its currency which call for special 
 notice. And on this account alone these points are here 
 introduced, for much of the nature, general duties, and 
 punishments of the military service belong to the head of 
 government, since soldiers are the sinews of war, and 
 war is the business of government alone. 
 
 Deserters from the king's service, after being mustered 
 and receiving wages, were declared at one time to be felons,* 
 and are in war still liable to be sentenced by court-martial 
 to death or penal servitude. But in a country, where the 
 l)usiness of a soldier originates in contract, and much of the 
 life of a soldier is spent in works of peace, life is never 
 forfeited for such an offence. When a soldier deserts, in 
 time of peace, he is hable to be apprehended by any person, 
 and taken before a justice of the peace, who may send him 
 to the head-quarters of his regiment, or keep him in prison 
 till communication is made to the Secretary of State.^ The 
 
 ' Mutiny Act, 39 & 40 Vic. c. 8, § 44. The smart money is 
 twenty shillings. 2 |bid. §§ 46, 47. 3 Ihid. 57, 58. 
 
 < 18 Hen. VI. c. 19. ^ 39 & 40 Vic. c. 8, § 34. The person causing 
 a deserter to be apprehended is entitled to a reward of forty shillings.
 
 44G OF THE SECURITY OF THE PERSON. [ch. v. 
 
 fraudulent confession of being a deserter subjects the person 
 to treatment as a rogue and vagabond.^ And to advise and 
 aid desertion is a misdemeanour.^ But no one can break 
 open a dwelling-house without a justice's warrant in order 
 to search for a deserter.^ 
 
 Arrest of soldiers for crime or debt. — -A soldier has all the 
 ordinary rights and duties of a citizen. While a soldier 
 continues in the army, he is liable to be tried by the 
 ordinary courts, both in civil and criminal matters. But 
 in executing the process of the courts, he is not liable to be 
 taken out of the service of the army, except on a charge of 
 felony or misdemeanour. For these grave crimes he is 
 treated like other citizens, except where the misdemeanour 
 relates to his own particular duties. He may, however, be 
 arrested in respect of a debt exceeding thirty pounds, where 
 an arrest would be otherwise competent. In other cases and 
 matters he cannot be taken away from his duties, and the 
 process of the courts or of justices purporting to do so is alto- 
 gether void.4 But in all cases of felony and misdemeanour, 
 or debts above thirty pounds, officers and soldiers are dealt 
 with as if they were ordinary citizens, and for a command- 
 ing officer to refuse to deliver up to the civil magistrate 
 an accused person under his command, or to obstruct the 
 course of justice, renders such officer liable to be cashiered 
 from the service.^ 
 
 Peculiar punishments in army — military flogging. — There 
 are certain crimes punishable with death in a soldier or 
 officer, as being of a heinous nature and pecuKar to his 
 calling. Such are exciting mutiny or sedition — misbe- 
 haviour before the enemy — abandoning or sleeping on his 
 ])Ost — ^holding correspondence with the enemy — deserting 
 the service — striking or disobeying a superior officer — and 
 some others.^ And the sentence of death, if pronounced, 
 may be commuted by her majesty into penal servitude 
 for five years, or to imprisonment.'^ And it is specially 
 (enacted, that no court-martial for any offence committed 
 within the Queen's dominions during a time of peace can 
 sentence any soldier to corporal punishment. Such a 
 punishment may, however, be inflicted on a soldier while 
 on active service, if he is guilty of mutiny, insubordination, 
 
 > 39 & 40 Vic. c. 8, § 37. '^ Ibid. § 81. 3 ibid. § 82. * Mur. 
 Act, § 40. 5 Ibid. § 76. « Ibid. § 15. ' Ibid. 16.
 
 CH. v.] SEKVICE IN MILITIA. 447 
 
 desertion, drunkenness on duty, disgraceful conduct, or any 
 breach of the Articles of War. When this punishment is 
 lawfully inflicted, it must not exceed fifty lashes.^ 
 
 Marine service on shore, hoiv controlled. — The marines 
 when on shore are subject to rules like those of the army 
 in respect to the matters specified.^ Corporal punishment 
 is prohibited except during actual service in war, and then 
 limited to fifty lashes.^ A marine cannot be kept in 
 solitary confinement more than fourteen days at a time, or 
 more than eighty-four days in any one year without equal 
 intervals between.^ 
 
 Militia service liow far compulsory. — The great questions 
 of policy, arising out of the relatious between the crown, 
 the parliament, and the militia, on wliich the civil war was 
 said finally to turn,^ belong to the head of government, and 
 need not be noticed here ; but as the theory, on which the 
 militia service is maintained, is described in the Militia Act 
 of 1802 to be, that " a respectable military force, under the 
 command of officers possessing landed property, is essential 
 to the constitution," it is important for all citizens to know 
 how far they are liable to be called upon against their will 
 to take part in this force. If it is a compulsory duty, and 
 such a theory could not be acted out without some compul- 
 sion, there must obviously be a mode defined by which part 
 of the inhabitants are singled out from the rest, and with- 
 drawn from all other employments to follow only this ; or 
 if it is an occasional and temporary employment, then that 
 occasion and its usual conditions require to be known and 
 considered. 
 
 The mode of bringing compulsion to bear for militia 
 purposes is this. The numbers of men to be supplied are 
 assigned to each county by the privy council, and the meet- 
 ings of lieutenancy, when the occasion arises, can call on 
 the constables to return lists of all the men dwellin"- in the 
 county, between the ages of eighteen and forty-five.^ The 
 truthfulness of these lists is secured under heavy penalties. 
 And when the returns have been duly settled, then the 
 names are to be chosen by ballot. The person balloted 
 shall be compelled to serve, subject to this proviso, that, if 
 
 1 Mutiny Ant, § 22. See further, ^os<, Cliap. viii. " Punishment" 
 2 Marine Mutiny Act, 39 Vic. c. 9. ^ Ibid. § 27. ^ Ibid. § Sfi. 
 
 5 2 Hall. Const. H. 128. 6 42 Geo. III. c. 90, § 25.
 
 448 OF THE SECURITY OF THE PERSON. [cii. 
 
 he shall produce a substitute, able and fit, and who shall 
 have not more than one legitimate child, then such sub- 
 stitute shall be accepted. There are some exemptions 
 expressly established, such as peers, those serving in other 
 capacities as soldiers or sailors, clergymen, teachers licensed 
 to teach in separate congregations, and any poor man having 
 more than one legitimate child. And he who has once 
 served is exempted, till his turn in rotation again arrives. 
 He who, when chosen, refuses to serve, is fined ten pounds ; 
 and if such sum is not paid, he shall be treated as duly 
 enrolled, and shall be liable to the same punishment as 
 others are for desertion.^ 
 
 While this compulsory service is one of the contingencies 
 to which all men of a certain age are liable, still the occa- 
 sion of enforcing a ballot with its compulsory levies has 
 been rare, and is seldom again likely to arise, except in case 
 of an invasion by a foreign enemy, or a similar extra- 
 ordinary urgency. And accordingly the balloting of the 
 militia and the raising of a sufficient domestic force in this 
 way has long been suspended by statute. This Suspension 
 Act has been annually renewed since 1865 as a matter of 
 
 course.^ 
 
 But while the compulsory part of the militia service has 
 been practically suspended and abolished, there is a volun- 
 tary service of the same kind still kept up by means of 
 enlistment. The rule as to enlistment and desertion is the 
 same as that relating to the army.^ One characteristic of 
 the militiaman's service is, that he cannot be forced against 
 his will to serve in any place out of the United Kingdom, 
 though with such consent he may serve in the Channel 
 Islands, Man, Gibraltar, and Malta.* In consideration of 
 the importance of his duty, the militiaman is excused from 
 serving the office of constable, and when a militia officer 
 is appointed sheriff, the under-sheriff is bound to act for 
 him while the militia force is embodied.^ 
 
 Impressment of seamen, how far legal.- — Though com- 
 pulsory service in the army was abandoned in the time of 
 Charles I. as a doctrine and as a practice untenable, except 
 when parliament comes forward in the common interest 
 
 1 42 Geo. III. 0. 90. '^ 28 & 29 Vic. c. 40 ; 39 & 40, Vic. c. 
 
 69. •■' 38 & 39 Vic. c. 69, § 31. < Ibid. §§ 49, 50. 6 Ibid. 
 §§94 95.
 
 on. v.] IMPRESSMENT OF SEAMEN. 449 
 
 and passes an act to legalise it during a pressing emergency 
 and no longer — though service in the militia is in its worst 
 form softened by the equality of the ballot, yet as regards 
 tl)e sea service a doctrine has prevailed, which in its gross 
 injustice and inhumanity seems not to be surpassed in the 
 most barbarous countries. This is the doctrine and practice 
 of impressment for the navy, wliich has often been proudly 
 pointed to as having flourished in England from the earliest 
 times, and as having survived all the assaults of the wisest 
 statesmen and sagacious legislators, and as having been 
 recognised in all the courts for centuries as an unassailable 
 axiom of the common law.^ Yet this is none other than a 
 practice under which any government of the day, without the 
 least authority from parliament, can, whenever sufficient 
 men are not forthcoming to man her majesty's fleet, authorise 
 any person who has lived a seafaring life to be seized in the 
 street, or wherever he may be found, and carried oif at a 
 moment's notice by force, severed from his family and his 
 occupations, and made to fight the country's battles in 
 whatever part of the world the demon of war beckons. 
 It is no wonder that Sir Mathew Decker, in 1756, wrote, 
 that impressment put a free-born British sailor on the 
 footing of a slave.^ By this practice free men have been 
 entrapped in taverns, or while on board merchant ships, 
 or on leaving churches, by a press-gang (often assisted by a 
 military force), who have committed the grossest outrages 
 on individuals, and whose atrocities have been the terror 
 of country villages and towns, but have been extenuated 
 
 ^ Justice Foster's elaborate argument, or rather apology, " upon 
 the foot of reason and public utility," for impressment being part of 
 the common law is founded on the essential fallacy, that, because 
 some people have voluntaiily chosen the seafaring life, therefore it 
 is less unjust tliat the crown should seize upon them and make them 
 do the work of defending the country than to seize on any of the other 
 classes who did not choose the seafaring life. He first says, all 
 men are equally liable to serve the country in an emergency, and 
 then concludes that therefore a few of them onlj^ ought to be made 
 against their will to serve, and that all the rest should go scot free. 
 What possible difference it can make that some unfortunate people 
 choose the seafaring life, no intelligent person can point out. The 
 strong common sense of Benjamin Franklin, tliough unlearned in the 
 law, refuted this illogical reasoningwith nuisterly ironv. — 2 Franklin's 
 Works, 331. 
 
 2 Decker on Trade, quoted 2 Pari. Deb. (3rd) 639. 
 
 VOL. I. G G
 
 450 '" OF THE SECURITY OF THE PERSON. [cH. 
 
 and protected by the courts against all question.'- It lias 
 been held again and again to be sound policy as well as 
 sound law. When, however, in 1859, the subject was 
 maturely examined by a commission, it was agreed that 
 such a system could no longer be successfully enforced. ^ 
 
 Authorities as to the law of impi-essm ent. ^Coke asserted 
 the law to be, that those only were lialsle to be pressed, 
 who held lands on such a tenure, or who had covenanted 
 so to serve, or who were the king's prisoners.^ Hale 
 thought the legality of impressment doubtful; at least he 
 expressly said he gave no opinion.* Lord Camden said it 
 was wholly illegal. Lord Mans ti eld admitted that usage 
 alone supported it, and gave no better reason for it than 
 the trite maxim, that private mischief should rather be sub- 
 mitted to than that public detriment and inconvenience 
 should ensue — a maxim which is too vague to challenge 
 either assent, or acquiescence.^ Lord Chatham's British 
 instincts recalled from it.^ Lord Kenyon repeated, that 
 impressment was founded on the common law, but was 
 confined to persons whose employment is on the sea and 
 on navigable rivers.'^ 
 
 Sir Mathew Foster is credited with the distinction of 
 being the champion of this anomalous doctrine, and he 
 has refined and strained law (wliich has on other subjects 
 sometimes been called the perfection of reason) to such an 
 extent, that its best friends can in modern times scarcely 
 recognise it.^ That impressment had prevailed fi'om the 
 earliest times seems to have been undisputed, and yet this, 
 the leading idea, has carried all before it. Though we 
 know this phrase is but a flourish of rhetoric, and points 
 to an epoch posterior to Tacitus and Caesar, posterior to 
 Canute and Alfred, wonderful has been the respect to the 
 unknown and imsearchable wisdom it is taken in this 
 instance to indicate and embody. The le.Ljality of impress- 
 ment was again defended by Mr. C. Butler, who had the 
 benefit of former championship, on the following grounds. 
 It is said; that the navy must be supplied with men, 
 because it is essential to the existence of the nation ; and 
 
 1 19 Pari. Hist. 81. 2 R^p. Com. Navy, 1859, p. 11. 3 i ingt_ 
 71. ■* 1 Hale, P. C. G78. ^ R. v Tiibbs, Cowp. 512. 6 15 ]..,r] 
 Hist 602 ; 20 Pari. Deb. (3rd) G78. ' R. v Fox, 5 T. R. 276, 417. 
 8 Foster, Cr. L. 178 ; 18 St. Tr. 1323.
 
 CH. v.] INJUSTICE OF IMPRESSMENT. 451 
 
 that to get men by bounties is extravagantly costly, and im- 
 practicable. It is no great hardship to seize seamen and 
 to single them out for a compulsory service, because all 
 law is full of inequalities, and one equality more cannot 
 make much difference. When a seaman is made to serve 
 in the king's ships, it is only slightly varying his own 
 occupation. Besides, it has been the custom in all ages 
 of our histMy for the admiralty or the crown to authorise 
 seamen, and often landsmen generally, to be seized and 
 impressed ; and many statutes expressly refer to the 
 practice as part of the common law. Moreover it must be 
 a right inherent in every government to call on particular 
 citizens to act for the public interest as they may be 
 required.^ Such is the apology offered. 
 
 Essential injustice of impressment. — That many nations, 
 especially ancient and mediaeval nations, have in the des- 
 perate turns of fortune resorted to impressment in order 
 to man their ships, should scarcely be deemed a lawful or 
 meritorious origin for any English rule of law. That 
 those who have tlie power should compel and force those 
 who are at their service to do anything they please, is an 
 axiom of history. But all the wisdom invoked from the 
 
 ^ According to TImcydides, the Athenians in an emergency 
 pressed sojourners as well as citizens into their ships. — Thucyd. b. iii. 
 In the latter days of the Roman republic force vras used to ob- 
 tain recruits. — Sallust ; Gibbon, Decl. and F. c. \. In a later age 
 Arcadius and Honorius laid down the rule, that individuals may 
 keep vessels, but must always be at the call of the public — Cod. 
 Theod. b. xiii. tit. 7, c. 2. In all periods of Venetian history, on 
 the eve of war, it was the practice for the government to arrest 
 merchant ships and all hands on board, and use them for the public 
 service. 
 
 Danegelt was a tax of one shilling on every one in the kingdom to 
 fight or buy off the Danes. — Chron. Sax. 136. Domesday Book 
 mentions places bound to find the king with seamen and materials 
 for ships. — Seld. Mar. CI. The merchants of the Cinque Ports were 
 bound to find and equip at their own expense a certain number of 
 ships.— 4 Inst. As early as the reign of Edward I. the admiralty had 
 powers conferred by writ to compel merchants and mariners to find 
 and serve in ships. — Bac. on Gov. pt. ii. ; Scobell, Coll. ; 2 Stubbs, 
 C. H. 288. From the reign of .John orders used to be issued by the 
 crown to arrest all ships and men, and the public service was treated 
 as paramount. And express authority by statute has sometimes been 
 conferred on the lord admiral to impress various classes of persons 
 for the navj\— 10 Ch. I. c. 5 ; 16 Ch. I. c. 23, § 26. 
 
 G G 2
 
 452 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 precedents of the admiralty, from the common law, from the 
 legislature, from the practice of other nations, ancient and 
 modern, can never extenuate the essential injustice and 
 tyranny of seizing on one class of men and making them 
 slaves to all the rest. This is the more conspicuously 
 unjust when a legislature exists, which can at all times 
 intervene, and exists for no other purpose but to meet and 
 deliberate when and how best to prevent one class of 
 citizens from being oppressed for the good of the rest.^ 
 Tlie assumption, that impressment is the only efficient 
 mode of manning the navy in an emergency is, on the 
 most cursory reflection, baseless, though it is the kind of 
 plea which absokite power has resorted to in all ages. It 
 is only in disguise the old objection, that impressment is 
 the cheapest remedy. In any supreme crisis, when a 
 nation is like a beleaguered garrison, the resource of the 
 ballot is always at hand, and the whole property of all the 
 inhabitants, to the last acre and to the last shilling, is also 
 available in order to supply the sinews of war ; and what- 
 ever be the price which liberty may require, that price 
 must be paid. But it is parliament and parliament alone 
 which can act as the great pacificator, through whose 
 mediation the resources of the country can be made with- 
 out injustice and without invidiousness to minister to the 
 common good of all. By this medium alone can jarring 
 interests and duties be reconciled. It is the manner and 
 nothing but the manner in which the jDainful operation 
 is performed, that softens the sharpest pangs, that makes 
 the bitter sweet, and takes all the sting out of oppression. 
 
 ^ In 1779 parliament in three days passed an act to suspend all 
 exemptions from impressment into the navy, together with tlie right of 
 those impressed to sue out a writ of ^afteas cor/JJ/s for their liberation. 
 — 20 Pari. Hint. 962. Mr. Attorney-General Ryder, in the House 
 of Commons in 1741, after enlarging on the maxim, that the safety 
 of the state is the supreme law, ended by saying tliat by any other 
 plan than impressment "you will have a much less powerful nav3'^at 
 a nnich greater cost to the state." — 12 Pari. Ilht. 2G. Lord Mans- 
 field, while using the stereoty])ed arguments in favour of impress- 
 ment, is careful to add, that "a prcs.sed sailor is not a slave; no 
 comjnilsion can be put upon him except to serve his country."— -R. v 
 Tul>l)s, Cowp. 512. The same learned judge, however, says, "to 
 suppose the usage extends to private gentlemen anmsing themselves 
 with yachts, &c , is absurd."
 
 CH. v.] COMPULSORY OFI'ICE OF JUROR 453 
 
 Though therefore it has been too easily, and perhaps beyond 
 recall, laid down by the courts, that impressment of sea- 
 faring men is lawful by the common law, it will be ditticult 
 for a nation with a strict regard to liberty, and above all for 
 one which has waged so many successful battles for liberty, 
 to approve of such a law being again enforced. It would 
 have been wiser not to have thus frittered away the rule of 
 Magna Charta, that no free man shall be disseised of his 
 liberties, or exiled, but by lawfid judgment of his peers or 
 by the law of the land.^ 
 
 Compulsoory office of juror. — The ofBce of juror stands on 
 the footing of being essential to the correct administration 
 of justice. The mode of ascertaining facts depending on 
 the credibility of witnesses, and involving the guilt or 
 liability of parties, has been found by experience to be the 
 best, when impartial men, selected almost at random from 
 the crowd, undertake it. If these men, after hearing all 
 that can be said on both sides, and having balanced 
 opposing accounts under the guidance of the judge, arrive 
 at a conclusion, this, when accepted, may well be followed 
 up by the law with all the consequences assigned to such 
 facts. If the service of a juror were not therefore made 
 compulsory, justice would often stand still, and guilt and 
 disobedience would fail to be satisfactorily detected and 
 punished. The antiquity of this peculiar public function, 
 and the successive changes through which it has passed, as 
 well as its apt performance in varied departments of the 
 law, belong to the subject of Judicature; but as it is a 
 compulsory duty, and to some extent interferes with the 
 occupations of nearly all classes of society, part of it 
 falls properly within that division of the law relating to 
 the security of the person. Whatever compels one to give 
 up his own business or avocations in order to attend to the 
 business of others, not originating in his own contract or 
 voluntary undertaking, must be borne in mind, when it is 
 sought to comprehend how much of liberty is enjoyed, or 
 
 1 2 Inst. 47 ; 1 St. Tr. Pref. sxvii. Impressment was the osten- 
 sible cause of war between Great Britain and the United States of 
 America in 1812, wiien it was said all the Governments of Europe 
 maintained such a right. The American secretary stated that in 
 180G, during the European wars, 2,273 seamen were impressed iu 
 England. — Wikof^ Civ.
 
 454 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 how beneficial are tlie occasions, and how useful the ends, 
 for which part of that liberty is taken away. In this 
 instance the gain so far surpasses the loss, that none can 
 fail to feel, that it is infinitely better to be subject to this 
 occasional interruption of personal freedom, in order that, 
 when the time comes, his own may be more safely defended 
 at the hands of his neighbours. 
 
 Jurors divided into two classes — common and special. — • 
 There are two kinds of jurors known to the law, namely, 
 common and special jurors. The latter are selected from 
 the whole class, partly on account of their higher station in 
 society, and the intelligence and liberality which accom- 
 pany that station, and are reserved for special duty, a 
 duty, however, which is solely performed in civil suits. The 
 common jurors are those who dispose of all criminal 
 charges, whether these are made before the grand jury or 
 the petty jury : and they also dispose of a large proportion 
 of issues in civil suits. And one characteristic which at 
 present distinguishes the one class from the other is, that 
 while the common jurors are not paid, a small fee is paid 
 to the special jurors, who are moreover, as already stated, 
 used only in civil actions. 
 
 Qualification and atte?idance of jurors. — The qualification 
 of jurors has varied from time to time, and the Bill of 
 Rights allowed none but freeholders so to act in indict- 
 ments for high treason. In general now all persons between 
 the ages of twenty-one and sixty are liable to serve as 
 jurors. The qualification for a common juror is that of 
 being an owner of freehold estate of ten pounds a year, 
 or a leasehold of twenty pounds, or being a householder 
 rated at twenty pounds, or in Middlesex at thirty pounds.^ 
 In boroughs all burgesses are qualified.^ But there are 
 many exemptions set forth in the statutes, as peers, clergy- 
 men, lawyers, doctors of medicine.^ The qualification 
 of special jurors is the occupation of a house of fifty 
 po'.nids in large towns, and lOU/. elsewhere, or, being a 
 banker or merchant, or entitled to be called esquire.'* The 
 
 1 G Geo. IV. c. 50, § 1 ; 33 & 34 Vic. c. 77, § 7. 2 5 & 6 Will. 
 
 IV. c. 7G, § 121. 
 
 "* 33 <li 34 Vic. c. 77. Aliens, after ten years' residence, arc 
 qualilied. — 33 & 34 Vic. c. 77, § 8. Convicted felons arc inadmis- 
 sible.— Geo. IV. c. 50, § 3 ; 33 & 34 Vic. c. 77, § 10. •« Ibid. § G.
 
 CH. v.] DUTIES OF JURORS. 455 
 
 duty of preparing, verifying, and settling the lists of jurors 
 is performed jointly by the clerk of the peace and the 
 overseers, and approved by justices of the peace.^ And as 
 the duty of juror involves some trouble, tliere is given to 
 people who wish to avoid it an opportunity to see, that 
 they are not improperly put in the lists, these being freely 
 exposed to public examination beforehand.^ At the same 
 time all tampering with the oflicials, in order to leave out 
 the names of persons qualified, is punished by fine.^ And 
 it is also provided, that no person shall be summoned more 
 than once in any one year.^ 
 
 Punishment of juror for non-attendance. — The punish- 
 ment imposed on jurors for non-attendance is such a fine 
 as the court thinks fit.^ But the fine is not enforced for 
 fourteen days, so as to permit of an explanation.^ And the 
 juror cannot be imprisoned for non-payment, unless his 
 goods on sale by distress fail to yield payment.'^ 
 
 Juries lx:cpt separate from tlie parties. — The peculiar duty, 
 which juries are called upon to discharge, requires that 
 they should be as impartial as possible ; and hence there 
 is a laudable jealousy sliown by the law of anything like 
 tampering with their integrity. For this end an oppor- 
 tunity is denied to either of the contending suitors to 
 obtain any access to them, whenever they have once taken 
 upon themselves the function of judging. This object re- 
 quiring that there should be no communication allowed 
 between the jury and the parties, the jury are kept in a 
 separate part of the court, and as much as possible un- 
 approachable, from the beginning to the end of a trial. Coke 
 said, that, after the evidence is given on the issue, the jury 
 ought to be kept together in some convenient place, without 
 meat, fire, or candle, and without speech with any, unless 
 it be the bailiff; and with him only, if they be agreed.^ 
 Hence the jury are kept by themselves, and a bailiff* is 
 
 1 6 Geo. IV. c. 50, § 5 ; 25 & 26 Vic. c. 107 ; 33 & 34 Vic. c. 77. 
 
 2 33 & 34 Vic. c. 77. ^ G Geo. IV. c. 50, § 43. ' 33 & 34 Vic. 
 c. 77, § 19. 
 
 5 6 Geo. IV. c. 50, § 38. If tlie juror was one who was present 
 at a view, the least fine is ten pounds. The tine for nut attending- a 
 coroner or sheriff is not to exceed five pounds. — Ibid. § 53. 
 
 6 25 & 2(3 Vic. c. 107, § 12. The party fined must, in six days 
 after notice, make liis excuse, if any. "> 22 & 23 Vic. c. 21, § 32 ; 
 
 3 Geo. IV. c. 46 ; 4 Geo. IV. c. 37. « j ij^t. 227.
 
 466 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 sworn to keep them together.^ And on these occasions 
 the ancient law dealt somewhat harshly with these public 
 servants. There can be no reason for keeping the jury 
 from eating, far less from fire and light, as to do so would 
 only tend to lead them to neglect their duty ; and all judges 
 arrange the sittings of the jury, with a view to the require- 
 ments of nature, and no longer look with jealousy on any 
 trifling indulgence, as if it were a point to render their 
 duty disagreeable and irksome.^ It has been said, indeed, 
 tliat if the jury are treated with meat or other entertainment 
 by one of the parties, before they agree on their verdict, 
 and they give their verdict for him, such verdict will be 
 void ; though it would be otherwise if their verdict had 
 previously been agreed to.'^ But juries can scarcely, in 
 modern times, be presumed to decide according as one or 
 other of the parties treated them to refreshment, though 
 the scandal of such an incident should be scrupulously 
 avoided.* 
 
 1 2 Hale. P. C. 296 ; R. v Stone, 6 T. R. 527. 2 i i„st. 227. 
 
 ^ 1 Inst. 227, Everett v Youalls, 4 B. & Ad. 681. 
 
 ^ In one case, 30 Elizabeth, it is related, that the jury retired to 
 deliberate, and remaining a long time without concluding anj-thing, 
 " the officers of the court, seeing this delay, searched the jurors, it: 
 they had anything about them to eat, upon which search it Avas 
 found that some o± them had tigs, and others pippins ; for which the 
 next day the matter was moved to the court, and the jurors were 
 examined upon it wpon oath. And two of them did confess that they 
 had eaten figs. Three others said they had pippins, but did not eat 
 them. Those who had eaten were each tined five pounds." It was, 
 however, decided that the verdict was not void, as the eating was at 
 the expense of the jury themselves, and not of the party. — Mounson 
 V West, 1 Leon. 133 ; R. v Burdett, 12 Mod. 111. It seemed almost 
 a rule, that if the jury ate at the expense of the party, and gave a 
 verdict for him, it was bad ; but if against him it was good. — Jenk. 
 187 ; Dijer, 237. The Welsh statute of 1534, 26 Henry VIII. c. 4, 
 enjoined that jurors in Wales should not, \\ithout leave of the court, 
 be permitted to liave either meat or drink, thereby assuming that no 
 judge would think of denying this want of nature, if shown to be 
 reasonable in the circumstances. In a case in 1758, where the officer 
 refused to let the jury have candles. Lord Manslield thought it 
 necessary first to ask, if eitlier of the parties objected. Fortunately 
 neither did object. — R. v Hensey, 1 Burr. 647. 
 
 It was said to have been a custom at one time for the successful party 
 to entertain the jury.- — Hinith\'i Com. ; Fortesc. (A)tioK) 98. In a case in 
 1649, the jury asked, tliat they might have a cup of sack, but were told 
 that they could not have it in felony or treason cases, though in other
 
 cii. v.] JURORS KEPT WITHOUT FOOD. 457 
 
 It has sometimes been asked what authority there is 
 for allowing food to a jury during their deliberations ; but 
 it is so obvious a right, that some authority of a statute, 
 and of the clearest kind, would be required to take it 
 away. Law cannot presume to suppress the appetites of 
 ordinary men who are not criminals. Whatever may have 
 been the notions of duty in former times, no rule can now 
 be laid down or accepted, that the performance of a jury- 
 man's duty, or of any other judicial function, is incompatible 
 with such moderate food as each may reasonably require ; 
 and as to the necessity and quantity of it, nobody l;)ut the 
 juror can with safety dictate. The discretion of the court 
 may be brought to bear as to anything beyond a certain 
 minimum, but if a juryman represented that according to 
 his constitution and habits food was necessary, it would 
 only defeat justice, if not bring it into contempt, should 
 the request be denied. Starvation is much more likely to 
 derange than fortify or quicken the judgment ; and the 
 sole duty of a juror is to give his attention and the best of 
 his consideration to the matter in hand, but nothing more. 
 No rule of law requires that his duty shall be made 
 vexatious, if not dangerous to health.^ 
 
 Juries during adjoiLrnments. — If a civil trial last from 
 day to day, the jury at the end of each day are allowed 
 to return to their homes for the niulit. But in criminal 
 trials, where the issue is generally more momentous, it is 
 usual for the jury not to separate, but to remain together, 
 OT at least in private, and not to return to their homes, 
 lest by communicating with third parties they should 
 receive a bias." In such cases the court has an inherent 
 
 cases they had been permitted to drink before tliey went from the bar. 
 — 4 St.Tr. 14U4. And old authorities seem to assume as a first principle, 
 that juries ouglit to be debarred from all food during the stage M'hen 
 they retire to deliberate on their verdict. — Duct. tO Stud. 271 ; Moun- 
 sou r West, 1 Leon. 133 ; 3 C. & K. 90 (n ) ; Jenkyns, R. 187. This 
 practice of so jealously watching the food of jurors may be derived 
 from the old practice of champions before the battle taking oath that 
 they had neither eaten nor drunk anything "whereby the truth might 
 be disturbed and the power of the devil enhanced." — Mirrur, c. 3, § 
 25 ; 2 Inst. 247. 
 
 1 See Windsor v R. L. R., 1 Q. B. 31)0 ; 8 B. & S. 400. ^ Lang- 
 horne's Case, 7 How. St. Tr. 497 ; Hardy's Case, 24 How. St. Tr. 
 414, 572.
 
 458 OF THE SECUEITY OF THE PERSON. [cH. v. 
 
 power to adjoiiru, but the jury are meanwhile secluded 
 from the public, and are often kept together in a hotel.^ 
 
 Hoiv far juries must he unanimous. — As unanimity on 
 the part of the jurors, in both civil and criminal cases, is 
 one of the objects aimed at by the law, and the business 
 cannot be completed until such a result of their delibera- 
 tions is attained, it is obvious that whatever compulsion 
 is exercised must continue until their views coincide. 
 It may well be considered somewhat extraordinary, that 
 twelve men, taken, as it were, by accident out of the 
 crowd, should be expected, after a brief examination of 
 statements and witnesses, not only to agree, but should be 
 to some degree concussed into such agreement by con- 
 finement and deprivation of the comforts of their homes.^ 
 In any other business of life it would be vain to expect 
 such agreement ; nor indeed would any prudent man take 
 the trouble to consult, and run the risk and delay of 
 refraining to act, except on the unanimous view of so 
 many minds. And it may be asked, why should the law 
 attribute such importance to a unanimous view, and refuse 
 to acknowledge or give the. least weight to any conclusion 
 of less than the whole of the men selected to act as jurors, 
 seeing that it must be obvious that there is no power of 
 compelling the minds of men accustomed to think for 
 themselves to accept a view which may appear to them 
 unfounded or contrary to truth. Yet much can be said in 
 favour of the doctrine acted upon by the law, that unless 
 the whole of the jurors shall agree, their verdict shall go 
 for nothing. It would indeed be preposterous that free 
 men, empanelled to decide according to tlie truth, should 
 be punished for not acquiescing, or should be detained and 
 
 ' 25 St. Tr. 132, 745, 1295. 
 
 2 This rule of unanimity applies to all cases, except grand jurors 
 and jurors at a coroner's inquest. A grand jury consists of twelve to 
 twenty-three persons, and at least twelve nuist agree in their tinding. 
 A coroner's jury consists of more than twelve, and at least twelve 
 nnist agree. Jn county courts, where the jury consists of five, they 
 must he unanimous. It was thought that in ancient times the judge 
 attained unanimity by dismissing the minority and substituting new 
 jurors. — Glanv. b. ii. c. 17 ; Brdct. b, iv. e. ID ; Fleta, 230. And even 
 sometimes the verdict of the majority was accepted. — 2 Hale, P. C. 
 2'J7. J5ut in thetin)e of Edward 111. it was settled, that a verdict of 
 less than twelve persons was nugatory. — 41 A>>s. 11,
 
 CH. v.] UNANIMITY OF JUllIES. 459 
 
 imprisoned until their wills were subdued to one level — 
 till the obstinate or the sensible part should starve the 
 rest into a surrender of their reason. But so long as a 
 reasonable attempt only at unanimity is enforced, and 
 nothing like tyrannical coercion or the rack is employed, 
 the propriety of insisting on having the opinion of all or 
 none is capable of being supported, and for the following 
 reasons. 
 
 No jury is ever left to spell their way through difficult 
 and obscure passages of evidence or law. A judge is 
 always at hand to explain anything embarrassing, to 
 collect the scattered rays of evidence, and point them to 
 one or two precise issues ; and all that the jury have to 
 do is to weigh in their own minds the alternative state- 
 ments, and say which of them is more correct. When 
 they agree, a reasonable confidence is felt, that all other 
 persons would agree ; and Mdien they differ, it may with 
 equal reason be assumed that the point submitted to them 
 is so obscure, so delicate, and so ambiguous, that persons 
 equally sensible would take opposite sides, and would 
 stand by their respective views against all comers, un- 
 assailable to all the reasoning and all the argument of all 
 the rest of the world. Considering how solid and intense 
 is the satisfaction, not only to bystanders, but to the 
 parties involved, at this mode of finding guilt or liability — 
 when twelve persons having no interest one way or the 
 other, having heard everything that can be proved or 
 argued on one side and the other, unanimously agree in 
 one view — and how much feebler and less weighty is the 
 judgment of one mind only, however upright and sensible, 
 the result of unanimity is well worth aiming at in all 
 cases. If there are occasional instances in which the jury 
 act perversely or obtusely, they are at least more prone to 
 be humane than a single judge would be, and their dissen- 
 sion may thus be attributed to the weaknesses inherent 
 in human nature itself. And hence the best and least 
 likely to err of all tribunals as yet known among men is 
 that of twelve, or at least several, associated and impartial 
 individuals, to whom is submitted the guilt or innocence, 
 the liability or non-liability, in dispute. 
 
 In early times the court seems to have shown little 
 consideration to those juries who could not conscientiously
 
 460 OF THE SECURITY OF THE PERSON. [en. v. 
 
 agree in a verdict, treating their differences as the result 
 of obstinacy, which a little hard usage might overcome. 
 Hence it has been said, that if the jurors could not agree 
 in a verdict before the judges of assize left the town, they 
 might be taken in a cart by the sheriff to the borders of the 
 county, so as to give them the benefit of this additional 
 time to stimulate reflection, and their verdict might be 
 accepted by the judge in a different county ; though this 
 travelling^ has sometimes been treated as an idle invention.^ 
 Yet as it is impossible to compel a jury to agree, and 
 equally impossible to detain them for ever if there is no 
 prospect of their ever agreeing, all that the court can do 
 is to allow a reasonable time for the jury to make up their 
 minds, and if then they cannot agree, to discharge them 
 and treat the trial as abortive. No rule can be laid down 
 as to the circumstances which will justify their discharge 
 on the ground of disagreement. It is always a matter for 
 the discretion of the judge, and his discretion will not be 
 interfered with by any court of error.^ It is usual, however, 
 after the lapse of five hours, to come to a decision on this 
 point, for after such a time hunger must interfere with any 
 man's judgment, and discussion must have exhausted its 
 powers.^ In some countries, as for example in Scotland, 
 a rule has been laid down of allowing the court to accept, 
 after a lapse of three hours, the verdict of nine jurors, and 
 trtat it as the verdict of the jury ; and in criminal cases 
 the verdict of a majority, namely, eight out of fifteen, will 
 suffice in that country.'^ But in this country no middle 
 course has ever been adopted. The verdict of a majority 
 of a petty jury is not sufficient ; and if, after a reasonable 
 time, all the jurors cannot agree, the only course is to dis- 
 charge them, whether the case is civil or criminal. It is 
 
 • Tri. per pais, 274, 285 ; Morris v Davis, 3 C. & P. 427 ; Windsor 
 V R., L. R., 1 Q. B. 28y, 3'JO. Cuke says that some call tliis treatment 
 of a jury an imprisonment. — Co.Litt. 227b. Courts formerly indulged 
 in so many liarsh practices in all the departments of the law, that 
 this legend about the cart seems ijuite consistent with ancient notions 
 of propriety. Hale seems to recognise the practice.- — 2 Hale, 297. 
 
 2 Windsor v R., L. R., 1 Q. B. 390. 
 
 •'' In Scotland a precise time of six hours is fixed in civil cases, after 
 which, if nine are not unanimous, the jury are discharged, as a matter 
 of course.— 22 & 23 Vic. c. 7, § 2. 
 
 ■> 22 & 23 Vic. c. 7, § 1.
 
 CH. v.] MISCONDUCT OF JURORS. ;461 
 
 true, that in a civil case the parties may consent to take 
 the verdict of any portion of the jury ; hut that is entirely 
 by virtue of the agreement. And it necessarily follows, 
 that, after a jury lias been discharged for not agreeing, a 
 fresh trial may be had.^ 
 
 The jttry deciding hy lot. — The duty of the jury is to 
 apply their minds to the evidence, and endeavour to arrive 
 at a unanimous opinion. Hence it is so utterly contrary 
 to that duty to decide by lot, that the court on being 
 satisfied as to that fact, will not only set aside the verdict, 
 but will fine the jurors.'^ And yet, owing to the evils that 
 would be induced by allowing jurors to give evidence and 
 violate the confidence of their privacy, or connive with 
 j)arties outside, the court will not listen to any of them 
 seeking to disclose such misconduct. It is added, never- 
 theless, that if a stranger happen to look through a window, 
 and see the jury casting lots, such evidence will be accepted, 
 and if reasonably credible, will be acted upon.^ 
 
 Aecidcnt to juror during trial. — If a juror happen during 
 the trial to become so unwell as to require him to depart, 
 this also has the effect of discharging the rest of the jurors ; 
 and renders it necessary to begin the trial de novo, either 
 before a new jury, or the other jurors, with a substitute for 
 the absent member. In civil cases, by consent of parties, 
 the original trial may go on either with the reduced 
 number, or with one substituted for him who has with- 
 draM'u.-* And here again, if the discharge of a jury in a 
 criminal trial before giving their verdict occurs, there being 
 nothing in the nature of a trial, the prisoner may be tried 
 again, and is not entitled to his discharge.^ 
 
 Hoiv far jurors 'punishable for misconduct. — As the duty 
 of jurors is compulsory, and at the same time essential to 
 the administration of justice, it is obvious that while their 
 integrity is of vital importance, and may be expected to be 
 secured against suspicion, and some check put on their 
 
 1 Windsor v R., L. R., 1 Q. B., 289, .S90 ; 6 B & S. 143, 490. 
 2 Fov V Harder, 3 Keh. 805 ; R. v Fitzwater, 2 Lev. 139 ; Foster v 
 Ilawden, Id. 205 : Hale v Cove, 1 Str. G42. 3 Vaise v Delaval, 
 
 1 T. R. 11 ; Owen v Warburton, 1 N. R. 326. ^ Edwards' Case, 
 
 R. & Ry. 224 ; 3 Camp. 207 ; 4 Taunt. 309 ; R. v O'Connell, 1 Cox, 
 C. C. 413. ■ 5 Scalbert's Case. 2 Leach, G20 ; Kiiiloch's Case, 18 St. 
 Tr. 416.
 
 462 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 misconduct, they ought to be also secured against being 
 harassed by the fear of liability for mistakes made in the 
 honest discharge of their duty. As will be seen, the general 
 rule is, that judges of all kinds are free from responsibility 
 for mistakes so made in discharging the judicial office, 
 subject to some qualifications"; and it is fitting that the 
 office of juror should also partake of this immunity. One 
 of the dangers indeed arising out of corruption of juries 
 led to the early practice of requiring a qualification by 
 estate, so that they might answer for their misconduct.^ 
 
 The only legal mode of reversing a verdict of a jury 
 known to the common law was by attaint, granted by the 
 statutes of Edward II. and Edward III., the object of 
 which was to rehear the case by means of a jury of twenty- 
 four persons ; the law considering that the oath of one jury 
 should not be set aside by an equal number, nor by less 
 than double the former. If the second jury agreed, the 
 verdict was confirmed ; if otherwise, the former verdict was 
 annulled, and the first jury were convicted of perjury and 
 false verdict. Fortescue says, that, if a jury be charged 
 with giving a false verdict and twenty-four men of estate 
 so find, then each juror shall be imprisoned, his goods shall 
 be confiscated, his property seized by the king, his houses 
 pulled down, his woods felled, his meadows ploughed up, 
 and himself declared infamous.^ And this practice of 
 attainting jurors was recognised in many ancient statutes 
 as a proper remedy in the circumstances.^ The Star 
 Cliamber seemed to have taken on itself to commit to the 
 Fleet, and order to be pilloried, jurors who acquitted per- 
 sons, as it thougdit, wrongfully.* That court justified itself 
 because the ancient remedy of attaint had almost gone into 
 disuse.^ When the jury acquit^ed Throckmorton in 1554, 
 some of the jurors were sentenced to pay a fine of 2000^.** 
 And the jury, who acquitted Lilburne in 1653, were 
 summoned before a council of state to answer for their 
 misconduct.'' 
 
 1 16 Hen. VI. c. 5 ; 16 & 17 Oh. II. c. 3. 2 Fortesc. De Laud, 
 
 c. 26 ; 3 Inst. 164 ; Co. Litt. 294b. 3 1 Ed. III. st 1, c. 6 • 
 
 34 Ed. III. c. 8 ; 11 Hen. VII. c. 24 ; 19 Hen. VII. c. 3 ; 23 Hen. 
 VIII. c. 3. •» Snii'th's Com. of E. b. iii. c. 1 ; Burn's Star Cli. 55, 
 
 64, 66. 5 2 Hallam, Const. H. 31. « 1 St. Tr. 901 ; 2 Strype, 
 
 120 ; Floyd v Barker, 12 Kep. 23. ' 5 St. Tr. 445 ; Penn's Trial, 
 
 6 St. Tr. 961.
 
 CH. v.] IMMUNITY OF JURORS. 403 
 
 In Bushell's case, however, in 1670, when the jury 
 refused to find a Quaker preacher guilty of anything hut of 
 speaking to the people in Gracecliurch Street, which the 
 Recorder of London treated as a contempt of court, and for 
 which he committed them, Edward Bushell, one of the 
 jurors, refusing to pay his fine, and being imprisoned, sued 
 out his habeas corpus; and the question was raised, whether 
 a juror was lial)le to be punished for doing what he 
 considered his duty. Vaughan, C. J., in delivering the 
 iudfjment of the court on that occasion laid down the law, 
 adhered to ever since, tliat if a juryman was merely to be 
 told what he was to find, then it was only troublesome 
 delay, great charge, and of no use in determining right and 
 wrong. The juror was held exempt from all punishment.^ 
 And the function of a juror may now be said to be sur- 
 rounded with as entire an immunity as that of the highest 
 judges in the land." 
 
 The practice of the court granting a new trial in civil 
 cases, whenever a mistake on the part of the jury or tlie 
 judge has led to a wrong conclusion, has been vindicated 
 as a necessary incident of jury trials.^ But any action or 
 proceeding against a juror in respect of his conduct as such 
 may be said to be inapplicable, so that his office is invio- 
 lable since the decision of Vaughan, C. J., in 1670. The 
 juror has only to consult his own conscience as regards the 
 part he takes in the macliinery of justice."* On the other 
 hand, the protection of jurors against caluinny and libel is 
 jealously guarded, and a criminal information may be filed, 
 or indictment may be laid, against the offender.^ 
 
 > Vaugh. 135 ; 6 St. Tr. 999. 
 
 2 The writ of attaint was formally abolished in 182^, though it had 
 long been obsolete. — ^Bright v Eynon, 1 Burr. 390. But the punish- 
 ment was reserved for embracery, or corrupt conduct to influence a 
 jury, and for a juror wilfully or corruptly consenting thereto, as such 
 punishment existed before that statute. — 6 Geo. IV. c. 50, § Gl. 
 
 The practice of the court granting a new trial began to be resorted 
 to, and the first instance on record of its use is said to be in 1G65, 
 though Lord Manstield said it was much older. — Bright v Eynon, 1 
 Burr. 290. 
 
 3 Per L. Mansfield, C. J., 1 Burr. 393 ; Per De Grey, C. J., 
 Fabrigas v Mostyn, 20 St. Tr. 175. -^ Johnston v Sutton, 1 T. E. 
 513 ; Greenvelt v Burwell, 1 L. Kaym. 469. ^ r_ „ Watson, 
 2 T. R. 199 ; R. v Hart, 30 St. Tr. 1131 ; li, v Thompson, 8 St. Tr. 
 1359.
 
 464 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 Compulsory duty of a witness. — The duty of every citizen 
 to give evidence in a court of justice may be said to rest 
 on the same footing as that of a juror. It is absolutely 
 necessary to the administration of justice. It may be an 
 accident or a misfortune, that a person should be present in 
 any emergency touching the life or business of another, 
 but, whenever it becomes important to that other that a 
 court, civil or criminal, should investigate some conduct or 
 some event on wliich any remedy whatever turns, the duty 
 for each and all to be at the call of such court in the 
 interest of truth and justice is all but self-evident. Yet 
 this power of compulsion may reasonably he subjected to 
 considerable qualifications, seeing that after all the procuring 
 of evidence is necessarily a matter exclusively within the 
 breast and subject to the will and almost the caprice of the 
 person claiming or possessing it.^ Not only is the duty 
 imperative on all persons to attend a court of justice as 
 witnesses, but whoever prevents or obstructs them, or uses 
 threatening language having that effect, is liable to be 
 punished for contempt.^ 
 
 Mode of enforcing attendance of ivitness in civil proceed- 
 ings in High Court of Justice, One mode of enforcing the 
 attendance of a Avitness in civil actions, but which is also 
 applicable to criminal cases, is by issuing a subpoena, 
 which is a writ in the Queen's name, addressed to the 
 witness and commanding him to attend at the time and 
 place specified. A penalty is sometimes named in the 
 writ, though it is not necessary. It is the service of the 
 writ which creates a duty on the witness, who is not bound 
 
 1 Plato in his laws made it compulsory for a witness to attend, 
 when duly cited to a court of justice ; otherwise he became liable for 
 the damages that resulted, and if any witness committed perjury 
 a third time, and offered to give evidence again, he was to be punished 
 with death. — Plato, De Leg. b. xi. The old Irish law required a pro- 
 perty qualihcation for u credible witness. — 1 O'Curri/, 279. The 
 compulsory nature of a witness's iunction was recognised in the 
 time of Henry ni.Stat. Prov. 43 Hen. III. § 14. 
 
 " Shiiw V Shaw, 2 Sw. & Tr. r,\7. 
 It is innnaterial in what part of the kingdom a witness may be ; 
 he is equally bound to attend. He can be summoned from prison 
 by appropriate writs. — R. v Friend, 13 St. Tr. 2. He may also be 
 suniiiioncd fnim any part of the United Kingdom. — 45 Geo. III. c. 
 'J2 ; 17& 18 Vic. c' 34.
 
 CH. v.] COMPELLING WITNESS'S ATTENDANCE. 465 
 
 without such a compulsion to attend a civil trial, though 
 in criminal cases he cannot insist on it.^ A subpoena is 
 nothing but a summons, and the writ summoning a witness 
 is usually called a summons in some offices of the High 
 Court, as well as in the exercise of judicial functions 
 conferred by statute on particular courts and officers.- 
 
 Much strictness is required in the formality of the writ. 
 Tt is necessary for the subpoena to specify the day of trial, 
 but if the trial lasts several days, the writ will continue 
 in force ; though it is otherwise if the trial be postponed.^ 
 A fresh writ is necessary in the latter case, and it is 
 incompetent to alter the date of the first writ.* In order 
 to secure the witness's attendance, it is required, that the 
 subpoena should be served a reasonable time before the 
 day of trial, so that he may not be unnecessarily harassed 
 and disturbed in his occupations, in order to comply 
 with it.^ In considering what is a reasonable time, it has 
 been held that that is a question for the judge, but that it 
 is settled, that the writ ought to be served at least on the 
 day before the trial, or before he is required during the trial ; 
 and if not served till the morning of the day, it need 
 not be attended to.^ But the distance and convenience of 
 travelling must always be elements for consideration on 
 such a question. This length of notice is, however, for 
 the protection of the witness, and may be waived by him, 
 or it may be inapplicable to him, if he is already in court, 
 or a spectator and disengaged.'^ The mode of serving a 
 witness with this subpoena is by showing him the original, 
 and also serving him with a copy ; and as there is a serious 
 punishment for disobedience, the service must be made 
 personally.** To be able to show the original writ is 
 absolutely necessary, for its effect is to interfere with 
 personal liberty ; and no man need attend to a message of 
 this kind, unless reasonably satisfied of its authenticity. 
 
 1 Bowles V Johnson, 1 W. Bl. 36 ; E. «; Sadler, 4 C. & P. 218. 
 •-' 15 & 16 Vic. c. 80, §§ 30, 31 ; 9 & 10 Vic. c. 95. 3 Scholes v 
 
 Hilton, 10 M. & W. 15 ; Sydenham v Rand, 3 Dong. 429 ; Davis v 
 Lovell, 7 Dowl. 178. * Barber v Wood, 2 M. & Rob. 172. 
 
 ■'' Hammond v Stewart, 1 Str. 510. ^ Barber v Wood, 2 M. & Rob. 
 172 ; Alexanders Dixon, 1 Bing. 366 ; 8 Moore, 387. ^ Maimsell v 
 Ainsworth, 8 Dowl. 869 ; Jackson v Seager, 2 D. & L. 13 ; Pitcher v 
 King, 2 D. & L. 755. » Garden v Crcsswell, 2 M. & W. 319; 
 Pitcher V King, 2 D. & L. 755. 
 
 VOL. I. HE
 
 466 OF THE SECURITY OF THE PERSON. [en. v 
 
 And while the writ ought to give reasona.bly specific 
 information as to the time and place of attendance, and the 
 name of the suit or proceeding, yet the witness ought not 
 to rely on critical objections founded on clerical or trifling 
 mistakes.^ 
 
 How far 'payment of witness's expenses required— But 
 thouQ-h the law makes the duty of attending as a witness 
 compulsory, it has at the same time provided, that the 
 reasonable expenses of such attendance should be paid to 
 the witness. What this reasonable expense is, is fixed l)y 
 rules of court. And a distinction is made as to the riglit 
 of the witness to demand payment of expenses beforehand, 
 according as tlie trial is civil or criminal. In civil cases 
 the witness is entitled to payment of reasonable expenses 
 ])efore he gives evidence ; and unless he receives payment 
 a reasonable time before the trial, he need not attend, and 
 if he attend he may refuse to open his mouth, until pay- 
 ment is made.2 It is, however, the business of the witness 
 to make this demand, and if he waive his right to expenses 
 either expressly or by conduct fairly implying such waiver, 
 he cannot excuse himself afterwards from attending and 
 testifying.^ Considerable difficulty often arises as to a 
 witness's remedy for the expenses of attending, if he is 
 not paid beforehand. The fact of attending implies in the 
 eye of the law a promise on the part of the person who 
 summoned the witness to pay these expenses.* But the 
 presumption is, that the party himself and not the solicitor 
 employed is the person so liable, unless there is an express 
 contract on the part of the latter.^ In all cases, where 
 there has been an express promise of the party summon- 
 ing the witness, then the witness who has attended can 
 sue on that promise for his expenses.^' But he cannot 
 recover more than the legal expenses for loss of time as 
 defined in the scale of allowances applicable to the cir- 
 cumstances of such witness.^ And if the witness's services 
 
 1 Molson V Day, 3 M. & P. .333 ; Cliapnian v Davis, 1 Dowl. N. S. 
 239 ; 3 M. & Gr. 009 ; Page v Carew, 1 C. & J. 514. 2 Bowles v 
 
 Jolinson, 1 W. Bl. 36 ; Fuller v Prentice, 1 H. Bl. 49 ; Home v 
 Smith, 6 Taunt. 9 ; Newton v Harland, 1 M. & Gr. 956. ^ Betteley 
 V McLeod, 3 Bing. N. C. 405 ; Goodwin v West, Cro. Car. 522. 
 ■» Pell V Daubeny, 5 Exch. 955. •• Robins v Bridge, 3 M. & W. 
 
 114 • Lee v Everest, 2 H. & N. 285. <^ Haileltw Mears, 13 East, 15 ; 
 Goodwin v West, Ci'o. Cur. 522. ^ Collins v Godelroy, 1 B. & Ad. 950.
 
 en. v.] COMPELLING WITNESS'S ATTENDANCE. 467 
 
 liave never been required, and no inconvenience caused, 
 the party may recover back the expenses ah-eady paid in 
 I>rospect of attendance.^ 
 
 In criminal cases, owing to their supposed greater 
 urgency and importance, this right of the witness to an 
 advance of the expenses was never recognised as a pre- 
 liminary to his obeying the subpoena, and he cannot refuse 
 to attend on the ground of such payment not being made.^ 
 But if poverty or the want of means to defray travelling 
 expenses were satisfactorily established, no court could 
 with reason punish him for not attending ; and hence when 
 the witness is summoned from a great distance, as, for 
 example, Scotland, his expenses must be tendered in 
 advance.^ Owing to the lamentable want of method in 
 everything relating to criminal prosecutions in this country. 
 no provision was made for paying witnesses' expenses in 
 such cases till the year 1732 ; after which date it began to 
 be usual to provide for these in particular cases, the loss of 
 time and money being felt grievously by all who assisted 
 in this capacity.* And since then enactments authorising 
 the payment of witnesses have accumulated. These ex- 
 penses, though still not claimable beforehand or in advance, 
 may nevertheless afterwards be reimbursed, along with tlie 
 prosecutor's expenses, in all felonies and all the more 
 serious misdemeanours.^ And the expenses of attending the 
 preliminary examination before magistrates are also now 
 allowed, as well as the costs of attending justices when 
 they exercise their summary jurisdiction in some indictable 
 cases.'^ And when a witness is summoned in cases where 
 expenses are allowable, he is not deprived of them merely 
 by some mistake ; and he is entitled to any incidental costs 
 which arise out of the performance of his duty.^ But as 
 showing the want of method and system in this branch 
 of the law, these rules as to costs of witnesses apply, 
 
 > Martin v Andrews, 7 E. & B. 1. 2 Peil ^ Daubeny, 5 Exch 
 
 1)57 ; E. V Cooke, 1 C. & P. 322. 3 45 Geo. III. c. 92, § 4 
 ■i 26 Geo. IL c. 36. 
 
 5 7 Geo. IV. c. 64 ; 14 & 15 Vic. c. 55 ; 24 & 25 Vic. c. 96, § 121 • 
 c. 97, § 214 ; c. 98, § 54 ; c. 99, § 42 ; c. 100, § 67 ; 30 & 31 Vic. 
 c. 35 ; 33 & 34 Vic. c. 23. 
 
 6 29 & 30 Vic. c. 52. 7 ig & 19 Vic. c. 126 ; 19 & 20 Vic 
 c. 118 ; 10 & 11 Vic. c. 82. 8 Re Mallison, 1 Lew. C. C. 132, 133 ; 
 R. V Robey, 5 C, & P. 552. 
 
 H II 2
 
 468 OF THE SECURITY OF THE PERSON. [cH. v. 
 
 not to all indictable offences, but only to the greater and 
 more serious portion of tliem ; and lience in those cases, 
 which are not so included, the witness may be bound to 
 attend at his own expense, as, for example, in prosecutions 
 for keeping disorderly houses, for nuisance, libel, forcible 
 entry, night-poaching, and some others. Nor are expenses 
 claimable in any cases where the indictment is removed by 
 certiorari into the Queen's Bench Division.^ If the witness 
 is summoned on the part of the accused, the expenses in 
 every case of felony or misdemeanour have, since 1867, been 
 allowed in like manner, subject to the qualification that the 
 court shall think the evidence to be of consequence to the 
 accused.^ These expenses were at first payable out of the 
 county and borough rate, but are now ultimately paid wholly 
 by the consolidated fund, with some trifling exceptions. 
 
 Remedy for witness not attending in Supreme Court. — The 
 remedies against a witness, who neglects to attend a trial or 
 court after being duly summoned, are twofold : — (1) he 
 may be committed to prison for contempt of court ; (2) he 
 may be sued for damages in a court of law. 
 
 Commitment of witness for disobeying subpoena. — One of 
 the punishments of a witness, who after being duly served 
 with process refuses to attend, is by imprisoning liim under 
 an attachment. For this purpose it is necessary to apply 
 to the court promptly, and to satisfactorily show that 
 the witness wilfully refused to answer, or was absent, or if 
 the trial has not taken place, that he had not been ready to 
 attend when required. This process has nothing to do with 
 reimbursing the party any damages caused by the witness's 
 absence, but is a mode of vindicating the dignity of the 
 court, and making memorable any instance of slighting it ; 
 and hence some conduct on the part of the witness strongly 
 implying disrespect must be shown in order so to j)unish 
 him.^ Thus it is required by those applying for this 
 process to satisfy the court that they had done all that was 
 required to be done. It is true that if it appears from the 
 facts before the court, that the witness thus r-^ quired was 
 
 ' R. V Kelscy, 1 Dowl. 481 ; R. v Richards, 8 B. & C. 420 ; R. v 
 Jeyes, 3 A. & E. 419 ; R. i? Exeter, 5 M. & R. 1G7 ; 8 A. & E. 590. 
 ^ 30 & 31 Vic. c. 35, §§ 3, 4, 5 ; 32 & 33 Vic. c. 89, § 10. 3 Scholes 
 
 V Hilton, 10 M. & W. 15 ; Home v Smith, 6 Taunt. 10; Nethcnvood 
 
 V Wilkinson. 17 C. B. 226.
 
 CH. v.] ACTION AGAINST ABSENTING WITNESS. 4G9 
 
 unable to give any material evidence, and he had been 
 summoned vexatiously, this summary process will not be 
 issued against him.^ Yet it is dangerous for a witness to 
 decide this point for himself, and such a defence will not 
 usually be listened to.- Nor will it be deemed any excuse 
 that the witness could not obtain permission from his 
 master, for the process of the court overrides all the 
 exigencies of private business, and the master's interests 
 must give way to the public interest.^ But however 
 flagrant may be tlie apparent contempt of court committed 
 by a witness who refuses to attend or to answer, the process 
 of imprisoning him for contempt is never issued without 
 first giving him an opportunity of showing cause and urging, 
 if he can, some satisfactory excuse.* And if the court is 
 not satisfied after hearing the witness, it may either commit 
 him to prison, or fine him a sum of money. Wliile a 
 witness who refuses to attend may be thus punished, it is 
 obviously much the same ground of complaint, that when 
 attending he refuses to swear. And Lord President Keble 
 fined a witness 500/. and imprisonment during pleasure, 
 for so refusing.^ And while an almost unlimited power is 
 placed in the hands of litigants to consider who shall be 
 summoned as witnesses on their behalf (for no leave of 
 court is ever required to control their discretion), it is 
 necessary to make some distinctions, for otherwise persons 
 may be harassed in tlieir business and avocations on 
 frivolous pretexts. It is on this ground that where high 
 ofticers of state are summoned, and are sought to be fined 
 or punished for non-attendance, the question, how far 
 their evidence was reasonably necessary, comes to be 
 material, because to allow them to be called away 
 unnecessarily is an interference with the public business.*' 
 Action against ivitnessfor not attending. — Another remedy 
 against a witness, who, when summoned, refuses to attend 
 the High Court, is an action of damages. An action of del)t 
 in such circumstances was expressly authorised by statute 
 
 1 Dicas V Lawson, 1 Cr. M. & E. 934 ; R. v Rnspell, 7 Dowl. 693. 
 2 Chapman v Davis, 3 M. & Gr. 609 ; Scholes v Hilton, 10 M. & W. 
 16. 3 Goff V Mills, 2 p. & L. 23. •» Rule IV. 1853, § 168. 
 
 '" 5 St, Tr. 134. A limit has not been imposed by statute to the 
 length of iniprisoninent on this ground. 
 
 ^ Dicas V Lawson, 1 C. M. & R. 934 ; R. v Russell, 7 Dowl. 693.
 
 470 OF THE SECURITY OF THE PERSON. [en. v. 
 
 of Elizabeth, in which case the court had power to inflict a 
 penalty of ten pounds, as well as award damages. But it 
 proved to be so unusual a proceeding for a court to award 
 damages, that this form of action has seldom been adopted 
 especially as the proceeding for attachment is usually 
 available.^ And yet when a court fines a party it exercises 
 precisely the same kind of calculation as to the amount of 
 miscliief and relative loss. This action against witnesses 
 for damages may be sustained, though the cause was not 
 in fact tried, and therefore not lost, and without proving 
 that the cause was well founded. All that is necessary 
 to be proved is, that the witness was material, and that 
 some damage was occasioned by his not attending at the 
 time of hearing.- 
 
 Summoning witnesses in Parliament. — Where a witness is 
 required before the House of Commons, the order is signed 
 by the clerk and served or sent by post, and if disobeyed, 
 the Speaker will issue his warrant, directing the Serjeant- 
 at-arms to apprehend the witness, and, after being brought 
 to the bar, he is usually committed to Newgate.^ And the 
 warrant of the House to commit need not state the par- 
 ticular reason for the committal on the face of it.* So the 
 Speaker's warrant, addressed to a gaoler to bring up a 
 prisoner, must also be obeyed ; ^ or the High Court will 
 send a habeas corpus to the gaoler for the purpose.^ 
 
 And in like manner an order of the House of Lords, 
 signed by the assistant clerk of Parliament, must be 
 obeyed.'' The Black Eod will be sent to apprehend any 
 disobedient witness,^ and if he cannot find him, the House 
 may address the crown to issue a proclamation, offering a 
 reward for the witness's apprehension.^ In public matters 
 the witness's expenses in both Houses are allowed by the 
 Treasury ; but in private matters the party requiring the 
 witness's attendance is answerable for the expenses. 
 
 Witnesses before inferior courts and statutory judicial 
 ofjicers. — The processes, by which inferior courts, and 
 officers and commissioners exercising judicial powers, 
 
 1 5 Eliz. c. 9, § 6 ; Pearson v Isles, 2 Doug. 556. '•^ Mullett v 
 Fluiit, 1 Cr. & M. 752 ; Yeatnian v Dempsey, 7 C. B., N. S. 028 ; 
 ;» C. B., N. S. 881. 3 Gossett v Howard, 10 Q. B. 359. " Ibid. 
 
 ^' 90 Com. J. 533. « R(> Price, 4 East, 587 ; Re Pilgrim, 3 A. & E. 
 485. 7 66 Lords J. 400 ; 21 & 22 Vic. c. 78, § 2. .** 'o'o Lords J. 
 538, 400. 9 Ibid. 441.
 
 OH. v.] ENFORCING WITNESS'S ATTENDANCE. 471 
 
 eulbrce the attendance of witnesses, are modelled on the 
 process of subpoena in the High Court. But as in all these 
 cases there is no inherent power to call on one person to 
 testify for the benefit of another, it requires statutory 
 authority, either expressly or by implication, to be con- 
 ferred for the purpose. And the rules as to punishment 
 for disobedience and payment of expenses are similar ; 
 though, as regards fines, the power of the tribunal is 
 limited to a small fixed sum, or the punishment is effected 
 by resorting to the High Court for auxiliary powers. In 
 the county courts, in which much of the inferior kind of 
 litigation in civil matters is carried on, express power to 
 summon and fine for disobedience the witnesses necessary 
 to assist the administration of justice, was conferred by 
 the statutes.^ 
 
 Witnesses summoned hy justices of the peace. — A vast 
 variety of criminal and quasi-criminal business being 
 done before justices of the peace, their compulsory powers 
 over witnesses require particular notice, for the smaller 
 the subject-matter for adjudication, the more irksome is 
 the compulsion of attendance. The jurisdiction, which 
 justices of the peace exercise, is twofold. They have the 
 jurisdiction to entertain all charges for indictable offences, 
 and to hear the evidence with a view to decide whether 
 such evidence is primd facie sufficient to authorise them 
 to commit the accused for trial. Secondly, they have 
 jurisdiction to convict parties, and make orders on them for 
 payment of money, in a great variety of subjects. This 
 is usually called the exercise of their summary jurisdic- 
 tion, that is to say, it is the power to hear charges 
 against persons, and to convict, and in certain events 
 commit these to prison, the whole proceeding commencing 
 and ending in petty sessions, and no other higher court 
 requiring to confirm their decision. 
 
 Justices of peace enforcing witness's attendance in indict- 
 able cases. — When a justice sits out of sessions, as it is 
 called, to hear charges for indictable offences, he may 
 in all cases, on the oath of a credible person, issue a 
 summons under his hand and seal to a witness, who 
 is not likely to attend voluntarily. If this summons is 
 
 1 9 & 10 Vic. c. 95, §§ 85, 86 ; 19 & 20 Vic. c. 108. The fine for 
 disobedience is ten pounds.
 
 472 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 not obeyed, and no just excuse is offered for the neglect 
 or refusal, then the justice may issue under his hand and 
 seal a warrant to arrest and bring the witness before hii... 
 Or this warrant may be issued in tlie first instance with- 
 out a previous summons, if the justice be satisfied on oath 
 that the witness will not otherwise attend.^ If the witness 
 when so arrested, or when attending, shall refuse to be 
 examined without giving any just excuse, the justice may, 
 by warrant under his hand and seal, commit such witness 
 to prison, there to remain for a period not exceeding seven 
 days, unless in the meantime he consent to be examined.- 
 The leugtli of the imprisonment is thus defined by statute. 
 Moreover when a witness has given evidence before justices 
 on a preliminary hearing, as to the guilt of a person who 
 is charged with an indictable offence, a usual mode of 
 compelling the attendance of such witness at the next 
 stage of the proceeding is for the justices to require liim 
 to enter into a recognisance. This recognisance is a bond, 
 whereby the recognisor declares that he owes to the queen 
 a certain sum of money, if he fail to appear and give 
 evidence at the time and place specified in the condition .^ 
 Tliis power of justices to bind over witnesses in criminal 
 cases by recognisance was conferred by a statute of Philip 
 and Mary, and is a useful part of the procedure.* The power 
 to compel the witnesses to enter into such a recognisance 
 is tlnis expressly conferred on all justices of the peace, 
 before whom a preliminary hearing of a charge for an 
 indictable offence takes place.^ And it enables j ustices to 
 bind the witnesses to appear, not only at quarter sessions 
 and assizes, but also at a trial in the High Court. ^ And 
 coroners have the same power, when an indictment for 
 murder or manslaughter follows on the verdict of the 
 coroner's jury." And if the witness refuses to be bound 
 over, that is to say, to enter into this recognisance, then he 
 may be committed to the common gaol, or house of cor- 
 rection, where he is to remain till after the trial of the 
 accused party, unless in the meantime he duly enter into 
 the recognisance, or unless the accused party is not com- 
 
 ' 11 & 12 Vic. c. 42, § 16. 2 Ibid, 3 ibij^ sch. 0. 1. 
 
 1 & 2 PIi. & M. c. 13 ; 2 & 3 Ph. & M. c. 10. ^ 11 & 12 Vic. 
 
 c. 42, § 2U. « R. V Ejre, L. R., 3 Q. B. 487. ' 7 Geo. IV. c. 64, 
 § 4.
 
 CH. v.] BINDING OVER WITNESSES. 473 
 
 mitted for trial.^ Hale and others went the length of 
 
 saying that such a power as this of binding over witnesses 
 
 was inherent in the very office of justices of the peace, 
 
 being necessarily implied in their commission as well as 
 
 the statutes of Philip and Mary.^ The ground indeed put 
 
 forward has been, that a witness must ex necessitate be kept 
 
 in liand by some one for the purpose of trial.^ Married 
 
 women are also required to enter into their own recognisance, 
 
 and an expressed determination not to attend is sufficient to 
 
 justify their committal until the trial.^ And an infant's 
 
 recognisance, with or without sureties, is also obligatory.-'' 
 
 But in no case is it compulsory for a witness to find sureties 
 
 to enter into such a recognisance, since a person, from no 
 
 fault of his own, may be utterly unable to find sureties. 
 
 Hence, a justice is not justified in committing a witness 
 
 merely on the ground that he offers his own recognisance, 
 
 but not the recognisance of any other persons as sureties.^ 
 
 The way in which a recognisance is enforced, is by 
 
 estreating it in the event of the recognisor not fulfilling the 
 
 condition by attending at the time and place specified. 
 
 This will not however be done until the recognisor has had 
 
 an opportunity of showing cause or explaining the reason 
 
 of his absence ; and unless the judges of the court, before 
 
 which the trial was to take place, authorise the estreat. 
 
 The effect of estreating the recognisance is, that a writ is 
 
 sent to the sheriff to levy the sum on the goods of the 
 
 recognisor, and, if enough cannot be found, then to imprison 
 
 him till the sum be paid.'' 
 
 Where witnesses are compelled to attend before justices 
 in the preliminary examinations of prisoners charged with 
 indictable offences, though such witnesses cannot insist 
 beforehand on expenses, except such as are absolutely 
 necessary for travelling, they are afterwards reimbursed 
 and paid a sum for trouble and loss of time on charges of 
 felony, and most of the charges for misdemeanours; but 
 this was only provided for by a very recent statute.^ 
 
 Justices enforcing attendance of witnesses at petty sessions. 
 
 1 11 & 12 Vic. c. 42, § 20. 2 2 Hale, P. C. 282 ; Croinpt. 125 ; 
 Dalt. c. 168. 3 See Bennet v Watson, 3 M. & S. 1. < Ibid. 
 •'' Ex p. Williams, 13 Price, 673 ; McClell. 493. g Evans v Rees, 
 12 A. & E. 59. ' 22 & 23 Vic. c. 21, § 32. « 29 & 30 Vic. 
 
 c. 52.
 
 474 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 — The power of justices over witnesses is equally necessary 
 to them in the exercise of their summary jurisdiction. 
 When justices exercise their jurisdiction in petty sessions 
 with reference to offences punished summarily, and with 
 reference to orders made by them, they can summon wit- 
 nesses to attend and direct their arrest and imprisonment 
 in the same manner as on charges for indictable offences ; 
 with this difference, that a- warrant to apprehend a witness 
 will not be issued, unless it be shown that a reasonable sum 
 for his costs and expenses had been tendered.^ Though the 
 attendance of witnesses is enforceable in aid of nearly all 
 the miscellaneous duties of justices in reference to convic- 
 tions and orders, yet a few special subjects are dealt with 
 under other statutes, as the Bastardy Acts, the Customs and 
 Excise Acts, the Poor Removal Acts. In these instances 
 similar powers are given, but the power to apprehend the 
 witness by warrant is not given in all cases, and instead 
 thereof he is merely liable to be fined a fixed sum.^ 
 
 Protection of witness from arrest during compulsonj attend- 
 ance. — As the attendance of a witness is a compulsory 
 duty, the law endeavours to make that duty less irksome 
 by throwing some protection around the witness when so 
 engaged. This protection proved to be of no small conse- 
 quence when the rule was, that persons could be arrested 
 as a matter of course, and at any hour of the day, for debt ; 
 but, now that that rule is aboHshed, there is small occasion 
 for the same indulgence. Nevertheless, sometimes this 
 immunity of a witness may still be required in exceptional 
 cases. The law was and still is, that a witness cannot be 
 arrested on civil process of any kind while he is discharg- 
 ing his duty as a witness, that is to say, cundo, morando, 
 redeundo; and whether he attend voluntarily or compulsorily, 
 it makes no difference in respect of this protection.^ In 
 
 • 11 & 12 Vic. c. 43, § 7. If tlie witness is not within the county, 
 t)r is in Scotland, Ireland, or the Channel Islands, the warrant, after 
 beini;- indorsed by the judge or justice of the jurisdiction within 
 wliich he is found, may be executed. This applies to indictuble 
 offences also.— 11 & 12 Vic. c. 42, §§ 11-16 ; Ibid. c. 43, §§ 3, 7. 
 
 2 A fine of twenty pounds for refusing to give evidence is the 
 utmost pimishinciit by the Customs Act— 39 & 40 Vic. c. 36, § 228. 
 A fine of ten pounds for not attending the Inclosure Commissioners. 
 — H& y Vic. 118, §9. 
 
 ^ Meekins v Snutli, 1 H. Bl. 036.
 
 CH. v.] COMPULSORY OFFICE OF SHERIFF. 475 
 
 ancient times a writ of protection was obtained to secure 
 the witness from this molestation.^ But hitterly the courts 
 themselves assumed to take judicial cognisance of this 
 immunity, which naturally arose out of the compulsory 
 discharge of a public duty, and they on motion interfered at 
 once to enforce due attention to so cardinal a rule of pro- 
 cedure. Thus a reasonable time was allowed for the return 
 of the witness from the court to his home.^ And a slight 
 deviation from the direct road was no reason for losing the 
 privilege, for bailiffs were told by the court not to dodge 
 their victim too closely.^ Accordingly, whenever a witness 
 was imlawfully arrested in these circumstances, the court, 
 when the suit was depending in a superior court, or the 
 court out of which the process issued, would on application 
 discharge him ; or he might be released by a writ of habeas 
 corpus} This privilege of the witness from being arrested 
 was, however, never extended to protect him from criminal 
 process, and thus practically was only a shield against 
 creditors.^ And as a consequence of such a rule, consider- 
 able difficulty has existed in distinguishing what was 
 criminal process.*^ It was deemed however a privilege 
 conferred for the advancement of justice, and therefore 
 was not waived by the conduct of the party, and yet it 
 was discretionary in the court to give effect to it.^ And no 
 a.ction could be brought against the sheriff or his officer 
 for a mistake, even thougli they had knowledge of the 
 circumstances: the only remedy against these being an 
 attachment. 
 
 Compidsory office of sheriff. — The office of sheriff, besides 
 his other functions, is so closely connected with the ad- 
 ministration of justice, that it is scarcely possible to try 
 a cause, civil or criminal, or to execute a judgment and 
 reap the fruits, unless he is ready to act. It is through 
 him that all processes to arrest the person and seize the 
 goods or the lands of a defaulting judgment debtor must 
 go. He takes charge of prisoners, and summons jurors 
 to their duties. He is the right arm of the law, which 
 
 'O' 
 
 ' 13 Rich. II. c. 16. 2 Eandull v Gurney, 3 B. & Aid. 255. 
 
 3 Strong V Dickenson, 1 M. & W. 491 ; Pitt v Coonibes, 5 B, & Ad. 
 1078. " Ex p. Tillotson, 1 Stark. R. 470. ^ jje Douglas, 3 Q. B. 
 837. 6 Kimpton v L. & N. W. R. Co., 9 Exch. 7GG. 7 Anon. 
 
 1 Dowl. 158 ; Magnay v Burt, 5 Q. B. 393.
 
 476 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 is powerless, unless its decisions can be carried into effect 
 through his officers. It is through him that for five 
 hundred years the 2'>ossc comitatus has been brought to aid 
 in subduing tumults and in enforcement of all legal 
 process, whenever numbers are required to overawe the 
 unruly and compel submission.^ William the Conqueror, 
 after a conspiracy in 1074, governed the provinces 
 through sheriffs dependent on himself.^ And Magna 
 Charta recognised the sheriff as an officer of the king,^ 
 and from Henry II. to Magna Charta limits were put 
 successively on his judicial powers. In 1259 he was 
 selected from a list of four good men chosen in the 
 county courts, and in 1262 the barons jealously guarded 
 this right against the king ; and under Edward I. it was 
 contended that to elect to this office was an ancient 
 popular right.* At first one sheriff used to act for two 
 counties in a few cases, but one was afterwards appointed 
 for each.^ 
 
 Qualification of sheriff. — By statutes of early date it 
 was settled, that none shall be a sheriff who has not 
 sufficient land within the shire to answer the king and his 
 people.^ And it was always, or at least at an early period, 
 taken for granted, that this office was a necessity of civil 
 government, and that each should take the burden of it in 
 turn. Hence an act of parliament is required to exempt 
 from the office ; '' or some occupation incompatible Mdth 
 such service, as for example that of a practising solicitor 
 or barrister.'^ It was found indeed inconvenient, that he 
 should act as a justice of the peace, for in many respects 
 his office requires him to carry out their decisions ; and he 
 was prohibited by statute in 1553 from acting as such 
 justice during his year of office.^ And this applies to 
 general county as well as criminal business.^*^ But when 
 he happens to be a militia officer, he is expressly excused 
 by statute from acting as sheriff during the time the 
 
 1 2 HaJlam, Const. H. 133. 2 1 St,ilil)s, C. H. 270. 3 Mag. 
 
 Charta, c. 24. 4 2 Stiibbs, Const. H. Sf), 207. ^ g Eliz. c. 1(3. 
 
 '' 25 Ed. I. 8t. 3, c. 13 ; 2 Ed. III. c. 4 ; 4 Ed. III. c. 9 ; 5 Ed. III. 
 c. 4 ; 13 & 14 Ch. II. c. 21 ; 2G i^:: 27 Vic. c. 125. ? y.. Shrewsbury's 
 Case, 9 Rep. 4(jb. ; R. v Larwood, 1 L. Raym. 29. ^ M. Norwich 
 
 ?^ Berry, 4 Burr. 2109. 9 1 Mar. st. 2, c. 8. ^o Ex p. Colville, 
 
 45 L. J., M. C. 108.
 
 CH. v.] REFUSING TO SERVE AS SHERIFF. 477 
 
 militia is embodied, and his duties then devolve on the 
 under-sheriff".^ 
 
 By tohom sheriff' is appointed. — By the earliest law ascer- 
 tainable, a sheriff was appointed by the county ; but a 
 statute of Edward III. enacted, that he should be nomi- 
 nated by the Chancellor of the Exchequer, Treasurer and 
 Chief Baron, and the judges. A meeting of these high 
 officers, called a meeting for the pricking of sheriffs,^ is 
 held on the morrow of St. Martin, when three persons are 
 selected, and out of this list the crown nominates one. 
 And the crown cannot nominate any one except from such 
 selected list.^ In the City of London, however, the office 
 is a freehold and belongs to the citizens.'* The clerk of the 
 Privy Council, after the nomination, makes out a warrant, 
 which confers all the powers of the office on the person 
 selected.^ The sheriff, when entering on his office, is 
 required to take an oath, the form of which is prescribed 
 by statute ; and this oath enumerates a great variety of 
 general duties of loyalty and integrity connected with his 
 office.^ 
 
 Sheriff refusing to serve. — If a person nominated refuse 
 to take upon himself the office of sheriff, he is liable to 
 an information or to indictment, since the refusal causes 
 a stop to justice.'' And it was even held that if he was 
 unable by reason of excommunication to take the oaths 
 and act, then he was liable to be fined for not getting rid of 
 the obstacle, so as to serve.^ He continues in office only for 
 one year, for it was deemed likely to lead to oppression 
 if he held so important an office longer.^ It has been held 
 a misdemeanour, if he do not reside in his bailiwick.^^ And 
 one who has served the office shall not serve it again for 
 three years, if there be another competent to act.^^ It Avas 
 complained of in the time of Edward VI., that the sheriff 
 was often impoverished by the expenses of his office, and 
 some rough mode of reimbursement was described, though 
 
 1 38 & 39 Vic. c. 69, § 94. '^ 14 Ed. III. st. 1, c. 7. » 2 Insf 
 .559 ; Jenk. 229. " 23 Hen. VI. c. 8 ; Bac. Abr. Sheriff. & 3 & 4 
 Will. IV. c. 99, § 3. 6 3 Geo. I. c. 15, § 18 ; 3 & 4 Will. IV. c 99 
 § 0. 7 E. V Woodrow, 2 T. R. 731. » R. v Read, 2 Mod. 299 
 
 '■' 14 Ed. III. St. 1, c. 7 ; 28 Ed. III. c. 7 ; 23 Hen. VI. c. 8 ; 3 Geo. I 
 c. 15, § 21. *" Long's Case, 3 St. Tr. 233. n 1 Rich II 
 
 e. 11.
 
 478 OF THE SECURITY OF THE PERSON. [en. 
 
 apparently never systematically acted on.^ Before the 
 time of Charles II., the sheriffs were expected to keep an 
 open table at the assizes, and to make presents to the judges 
 for their provisions, and gratuities for their officers, and to 
 keep up much state ; but the sheriffs were in that reign 
 by statute prohibited from indulging in this profuse hospi- 
 tality, and from keeping more than forty men, or less than 
 twenty men-servants in livery at the assizes, and the 
 penalty for disobedience of the statute was 200/.^ 
 
 Comindsory ynmiicipal officers. — The duties relating to 
 self-government in municipal boroughs must be discharged 
 as well as those relating to the administration of justice, 
 and a species of compulsion as to some of these offices 
 still exists, and has existed from the most ancient times. 
 The obligation to serve municipal office was, indeed, once 
 euforcible by serious punishments. It is stated in old laws 
 of the Cinque Ports that, if a person refused to serve as 
 mayor or as jurat, which latter was an office corresponding 
 to iDailiff, justice, and overseer all in one, the people were 
 to go to his house, and oust him as well as his wife and 
 children, then close the windows, seal up and sequestrate 
 the goods, till he submitted. And sometimes his house was 
 pulled down and razed to its foundations.^ It is to this 
 day an essential feature of municipal government, that 
 officers should exist from year to year ; and the High Court 
 will enforce by mandamus the election of the usual officers, 
 if the machinery is allowed to stand still ; all which 
 machinery is fully described in the modern municipal 
 corporation statutes.* 
 
 Every person who is qualified and who has been elected 
 to the office of alderman, councillor, auditor, or assessor, 
 and every councillor who has been elected to the office of 
 mayor, must accept such office or pay a fine, not exceeding 
 fifty pounds in the former cases, and 100/. in the last case.-' 
 And on payment of a like fine a person may resign any of 
 such offices.^ The qualification is defined by the statutes 
 and usually consists in the possession of real or personal 
 estate within the borough. If the fine is not paid, a 
 justice may grant a warrant to enforce payment by distress, 
 
 1 2 &3 Ed. VI. c. 4. '■' 14 CI). II. c. 21, § 1. » 1 Lyon's 
 
 Dover, 203. ' 7 Will. IV. & 1 Vic. c. 78, § 2G. ■'^ 5 & 6 Will. IV. 
 c. 76, § 51. « 7 & 8 Will. IV. c. 104, § 8.
 
 CH. v.] COMPULSORY OFFICE OF CONSTABLE. 479 
 
 and if the goods are insufficient, then imprisonment may 
 follow, but it is not to exceed two calendar months.^ 
 Infirmity of mind or body will be a good ground of excep- 
 tion, and so will the age of sixty-five years or upwards, or 
 a previous service of the same office within five years 
 previous.- This punishment of those who refuse to accept 
 municipal offices is prescribed by recent statutes ; but there 
 is also a remedy by indictment or criminal information at 
 common law for this neglect, and even a m.andamus will 
 be the ultimate punishment, to disobey which is to be 
 liable to imprisonment.^ As, however, the statute has 
 prescribed an appropriate punishment, the court, in 
 exercise of its discretion, will naturally refuse to help the 
 parties by giving them another remedy.* 
 
 Compulsory office of constable. — The office of constable, 
 though of high antiquity, has in modern times been con- 
 fined to a more limited range of persons than its impor- 
 tance seems to require. The laws of Alfred in effect made 
 it compulsory that every ten freeholders should choose an 
 annual officer, called a constable, who was head of his 
 decenary, and was sworn in before the feudal lord, or if there 
 was no feudal lord, before the sheriff, and a like officer for 
 the hundred was called the high constable.^ There were 
 afterwards doubts as to the power of choosing the constable. 
 And a woman was equally bound to serve this office or to 
 find a substitute. When justices of the peace were ap- 
 pointed in the time of Edward III., they naturally took the 
 charge of this class of officers, who were pre-eminently 
 peace officers, and their own ministers and servants, and 
 appointed them when the sheriff or lord had failed to do so. 
 And a statute of Charles II. recognised their right to do 
 this.*^ When a constable was duly elected or appointed, 
 he was liable to be fined for not serving, or he might be 
 indicted.'^ Certain persons, whose occupations were incom- 
 patible, were, as is usual, partly by the courts or by statute, 
 exempted from the office. And a statute of William and 
 Mary exempted Dissenters, who scrupled to take the oaths, 
 
 1 5 & 6 Will. IV. c. 76, §§ 51, 129. 2 Ibid. c. 76, § 51. 
 
 3 R. ■» Bower, 1 B. & C. 585 ; Vanacher's Case, 1 L. Raym. 499, 
 Carth. 400 ; R. v Ley land, 3 M. & S. 186. * R. v Huugerford. 
 
 11 Mod 142; R. i; Grrosvenor, 2 Str. 1193. * Mirr. c. 1, § 3 
 
 ^ 13 & 14 Ch. IL c. 12, § 15. ' 2 Hawk. P. C. c. 10, § 46.
 
 480 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 from serving, if they found a deputy.^ The office of high 
 constable was abolished in 1869.2 And the only persons 
 now compelled to serve the office of constable are parish 
 constables and special constables. But parish constables are 
 seldom so compelled, since the supply of competent and wil- 
 ling persons can easily be secured without this compulsion. 
 It is now only when the quarter sessions deem it necessary 
 to do so, that parish constables require at all to be appointed. 
 When so required, the justices make the appointment, and 
 the person chosen becomes, on being served with a warrant 
 of appointment, liable to serve the office.^ Every able- 
 bodied man resident in the parish, between the age of 
 twenty-five and fifty-five, and rated at a sum of four pounds, 
 is liable so to serve.* The overseers are changed with the 
 duty of furnishing proper lists of the qualified persons, and 
 each serves the office for a year, and need not serve again, 
 till all the other qualified persons have served their turn.^ 
 If he fail to serve or do not find a qualified substitute, he 
 still may be summarily fined or indicted.*^ And yet the 
 constable is not compelled by law to remain in his parish 
 for the whole year.^ And though formerly the office was 
 gratuitous, except that many fees were due for services 
 rendered, it is now usually by express resolution made a 
 paid office, and the payment made out of the poor-rate in 
 places other than boroughs.^ In boroughs and counties 
 constables are not compulsory officers, but are appointed at 
 their own request, and are paid on terms agreed. 
 
 Compulsory ofice of special constable. — But while there 
 are few common constables now compelled to serve in that 
 capacity, there are special occasions when a tumult or riot 
 is apprehended, and when patriotism demands that power 
 shall be given to justices to select, and that the persons 
 selected by them shall be compelled to serve. These are 
 called special constables. Whenever two or more justices, 
 on the oath of a credible witness, are satisfied that a tumult, 
 riot, or felony has taken place, or may be reasonably 
 apprehended, the justices may nominate and appoint as 
 many as they think fit of the householders or other 
 
 1 1 W. & M. c. 18. ** 32 & 33 Vic. c. 47. 3 35 & 30 vic. 
 
 c. 92. 4 5 & 6 Vic. c. 109, § f). ■^' Ibid. « 33 Geo. HI. 
 
 c. 55, § 1 ; R. V Lone, 2 Str. 920 ; R. v Brain, 3 B. & Ad. G14. 
 7 Ibid. « 35 & 36 Vic. c. 92.
 
 cu. v.] COMPULSORY OFFICE OF CHURCHWARDEN. 481 
 
 persons not legally exempt from serving the office of petty 
 constable. These persons are to act as special constables, 
 so long as the justices think fit, for the preservation of the 
 public peace, for the protection of the inhabitants, and the 
 security of property,^ Moreover a secretary of state may 
 for good reasons direct the lord lieutenant to cause special 
 constables to be appointed and sworn throughout any part 
 of the county, for a time not exceeding tliree months, and 
 may signify that no person shall be excused by reason of 
 any exemption.^ If a person nominated a special constable 
 refuse to take the oath, or refuse to attend at a place 
 for taking it, unless he can prove sickness or unavoidable 
 accident, a penalty of five pounds is imposed on him for 
 each default.3 And after the appointment the refusal to obey 
 lawful orders and directions is punishable in like manner.* 
 In boroughs and cities the same power to appoint special 
 constables, who are compelled to serve, is given to justices.-^ 
 But in both counties and boroughs a reasonable sum is paid 
 to the special constable for his trouble, loss of time, and 
 expenses; and this is paid out of the county rate and 
 borough fund respectively.^ 
 
 Com'puUory office of clmrchioarden. — The office of church- 
 warden is one which relates exclusively to the Established 
 Church, and it may be wondered how it can be ranked 
 among compulsory ofiices, seeing that there is now no 
 legal obligation to attend the church, or rather, non-attend- 
 ance there cannot be punished, as it once was. And a vast 
 number of the population, under the name of Dissenters, 
 provide, attend, and manage chapels of their own dedicated 
 to public worship ; and these are wholly unconnected with 
 the Established Church, and, indeed, repudiate all con- 
 nection with it. Nevertheless, the constitution of this 
 country, as at present arranged, includes an Established 
 Church, which is subjected to restrictions professedly 
 intended for the public good.^ The Church and its 
 
 ' 1 & 2 Win. IV. c. 41. 2 Ibid. § 3. 3 Ibid. § 7. '• Ibid S 8 
 ■' 5 & 6 Will. IV. c. 76, § 83. c 1 & 2 Will. IV. c. 41, 8 13 • 5 & 6 
 Will. IV. c. 76, § 83. 
 
 7 It is, indeed, singular that the Church should once have thought 
 of compulsory priests. In the early ages of Christianity, while 
 popular elections prevailed in the Church, we read of persons being 
 ordained against their will, and monks being seized by force and 
 
 VOL. I. "^I I
 
 482 OF THE SECURITY OF THE PERSON. [cii. v. 
 
 buildings and lands absorb a great portion of the property 
 of the country. Many of the uses of this property were 
 originally intended for, and are yet to a large extent 
 avaOable for, the public generally ; and so long as such 
 property exists and holds out benefits for the public, there 
 must be officers of some description to manage and ad- 
 minister it. As the administration of justice has the 
 compulsory service of jurors and witnesses, as local self- 
 government requires mayors and councillors, and as the 
 maintenance of the poor requires the compulsory service 
 of overseers, so the administration and care of at least the 
 fabric of the church and of the churchyard requires the 
 compulsory service of some members of the community, 
 and those are known by the name of churchwardens. 
 
 Qualification of churchwarden. — The office of church- 
 warden is one which any inhabitant of the parish is liable 
 to serve ; and there seems no reason why an unmarried 
 woman should be exempt. An inhabitant in this sense is 
 any one who occupies in his own right a house in the 
 parish, thougli he may not reside or sleep there.^ Many 
 exceptions, however, have been made to this liability, 
 which have been created partly by statute and partly by 
 the courts, owing to the occupations and character of the 
 parties appointed. Thus peers, members of Parliament, 
 justices of the peace, solicitors, aliens, Quakers, are ex- 
 empted.2 lioman Catholics and Protestant Dissenters 
 were long ago expressly exempted by statute.^ But the 
 courts have refused to relieve a man who pleaded merely 
 deafness,* or poverty.^ 
 
 Nomination of churchivarden. — The practice, founded on 
 the canons 89 and 90 of 1603, is, that the minister, or in his 
 place the curate, shall choose one, and the parishioners 
 in vestry choose the other churchwarden,^ unless some 
 immemorial custom of the parish varies the mode of 
 
 carried under a guard to be invested with the sacred office of a priest, 
 — Bim/ham, Christ. Antiq. b. i. c. 7, until the practice was pro- 
 hibited by the imperial laws and the canons of the Church. — Leo, 
 Novel. 2, in Ajq)end. Cod. Theod. 
 
 1 Stephenson v Langston, 1 Hagg. C. 379 ; R. v Spurrell, L. R., 
 2 Q. B. 72. 2 Anthony v Seger, 1 Hagg. 9 ; Adey v Theobald, 
 1 Curt. 447. a 52 Geo. III. c. 156; 1 Will III. c. 13, § 1. 
 
 " Cooper V Alhuitt, 3 Phill. 165. » R. v Rice, L. Rayui. 138 ; 
 
 1 Salk. 16G. 'i Hubbard v Pcnrice, 2 Str. 1246.
 
 CH. v.] SERVING AS CHURCHWARDEN. 483 
 
 appointment, as, for example, where the inhabitants choose 
 both instead of one, which is a custom prevalent in the 
 parishes of London.^ Yet a custom cannot be set up, that 
 no cliurch warden at all shall be appointed, for this would 
 nullify the law.''^ Statutes have also in special and in 
 particular circumstances prescribed the mode of election.^ 
 
 Enforcing service of churchwarden's office. — Though the 
 compulsory character of the office of churchwarden was 
 formerly justified by the fact, that the property whose care 
 is assigned to him was devoted to uses in which all tlie 
 public share, this theory has lost much of its application 
 since Dissenters have been exempted from the burden, and 
 have rights of their own of a substantial character. The 
 office was once justified, not merely because the property 
 would otherwise be wasted or neglected, but also because 
 the churchwarden's duty was to look after the morals and 
 behaviour of the whole parishioners. This latter ground, 
 however, though once boldly laid down by a judge in 1752 
 as a reason for the compulsory character of the office, 
 cannot be said to have now any substantial foundation.* 
 Yet as the office of churchwarden is compulsory, the 
 means of compelling the appointment necessarily exists ; 
 and when the minister or the inhabitants in vestry refuse, 
 the court will grant a mandanms commanding them to 
 appoint and elect a churchwarden.^ But it has been decided 
 that the vestry has the power of excusing a person once 
 chosen to the office ; and acting on this principle, many 
 instances have occurred of persons paying a fine to the 
 parish so as to escape the duty.^ When a person duly 
 elected refused to take upon himself the office, he was 
 formerly liable to be excommunicated ; and now that that 
 process has been abolished, he may be arrested under a 
 writ dc coyitumace capiendo^ 
 
 1 R. V Hinckley, 12 East, 361 ; Eveliiis' Case, Cro. Ch. 397. 
 2 R. V Wix, 2 B, & Ad. 197. 3 1 & 2 Will. IV. c. 60 ; Ibid. c. 38 ; 
 (>&! Vic. c. 37, § 17 ; 58 Geo. III. c. 45, § 73 ; 8 & 9 Vic. c. 70, § 6. 
 " St. Thomas v Trelierne, 1 Lee, 127. ^ Ex p. Joyce, 3 E. & B. 
 
 178. '^ Birnie v Weller, 3 Hagg. 474. 
 
 7 53 Geo. III. c. 127 ; Gibs, Cod. 216. It seems a contumacious 
 churchwarden may be kept in prison six months. 
 
 The specific duties and powers of churchwarden in reference to 
 the church belong to the division of law intituled " Security of 
 Public Worship." 
 
 I I 2
 
 484 OF THE SECURITY OF THE PERSON. [en. v. 
 
 Comjpulsory office of overseer. — The office of an overseer 
 was created by the statute of Elizabeth/ when the duty- 
 was first imposed on each parish, and at a later stage on 
 each township, of providing funds to maintain the poor, 
 as is more fully described in the chapter relating to the 
 " poor laws." That duty could only be discharged effect- 
 ually by appointing officers, whose business it should be 
 to collect the funds from the ratepayers, and apply these 
 funds in the manner described by the statute. And it 
 was left to the justices of the peace to nominate, or at 
 least approve, not less than two and not more than four 
 substantial householders to fill this annual office. No 
 power was given by the statute to remunerate the over- 
 seers, and hence the office is gratuitous. However important 
 may have been the office of overseer at the beginning of 
 the poor law organisation, much of that importance has 
 been taken away since the institution of poor law unions, 
 the guardians of which dispose of the chief business 
 appertaining to paupers. At the same time many miscel- 
 laneous duties have been during the last two centuries 
 created and attached to the office of overseer, the proper 
 discharge of which requires considerable knowledge of 
 many intricate and difficult statutes, and the neglect of 
 which is often attended with considerable liability. As 
 the general statutes relating to the duties of the office of 
 overseer are treated under the head of " poor laws," it is un- 
 necessary to do more than refer to that part of this work 
 for further details respecting it.^ 
 
 Compulsory office of surveyor of highways. — The last of 
 the compulsory offices now existing in this country is one 
 relating to highways. For the purpose of managing the 
 highways the inhabitants in vestry assembled are entitled 
 to appoint a surveyor to act for the year.^ He must live 
 
 In Queen Elizabeth's time a churchwarden was fined if he did not 
 assess the farmers, in order to raise a sum to reward persons for 
 destroying magpies, rooks, and hedgeliogs. These hostile creatures 
 were " crows, rooks, choughs, pies, stares, bullfinches, kingfishers, 
 foxes, wildcats, hedgehogs, moles." The birds excepted were 
 " hawks, herons, egrytcs, swans, shovellers, doves." — 8 Eliz. c. 10. 
 It was also the cliurchwardeii's duty to levy a shilling on all absentees 
 from church. — 1 Eliz. c. 2. 
 
 1 4)3 Eliz. c. 2. '^ See post, Chap. vi. " Poor." 3 5 & 6 Will. IV. 
 c. 60, § 6.
 
 CH. v.] SLAVERY. 48r> 
 
 in the parish, and have an estate in lands in such parish, 
 either in his own right or in the right of his wife, of the value 
 of ten pounds a year, or must have personal estate of 100/.; 
 or he must be an occupier of lands of the yearly value of 
 twenty pounds, and in the latter case it is enough if he live 
 in an adjoining parish.^ If the parish is included in a high- 
 way district, then a person is elected in the same manner as 
 a surveyor, and is called a waywarden ; but his duties are 
 similar, though not quite so extensive.^ The effect of his 
 appointment is, that he must either serve or provide a suffi- 
 cient deputy approved by the justices, or he will forfeit, on 
 conviction before two justices, a sum of twenty pounds.^ It 
 is true that he, and any inhabitant, may appeal to quarter 
 sessions against the appointment.'* The vestry, however, 
 may, in lieu of an impaid surveyor, nominate and elect any 
 person of skill and experience to serve the office at a salary ; 
 and in lieu of an election by the vestry, as lirst mentioned, 
 the justices may appoint a fit person as surveyor. If he 
 refuse to act, he is subject to the same penalty ; but it is 
 left ambiguous whether he must be a person having property 
 in the parish.^ If the person, elected a surveyor, refuse oi* 
 is unable to pay the penalty, and has no goods sufficient 
 to supply such payment, then he is liable to be committed 
 to prison for three calendar months with hard labour.'' 
 
 aiavery as a compulsory service. — Having now enume- 
 rated all those duties and offices which may be said to be 
 compulsory in this country, this chapter of petty as well 
 as useful interferences with personal liberty may here end. 
 All other acts and liabilities, which interfered directly or 
 indirectly with the natural right or liberty of each to 
 carry on his own employments in his own way, arise out 
 of some contract or voluntary choice, or some crime or 
 other illegal act, and may be said to be undertaken or 
 brought on himself, and not to be chargeable to others. 
 
 > 5 & 6 Will. IV. c. 50, § 7. 
 
 2 25 & 2G Vic. c. 61, § 10. A surveyor of highways, so far back 
 as the reign of Philip and Mary, was bound under a penalty to act. 
 —2 & 3 Ph. & M. c. 8 ; 14 Cli. II. c. (3, § 2. 
 
 3 5 & 6 Will. IV. c. 50, §§ 7, 8. " Ibid. § 105. » Ibid. §§ 9, 11. 
 6 5 & 6 Will. IV. c. 50, § 103. The duties and powers ol: surveyors 
 
 of highways belong to the subject of " highways," which is included 
 in that division of the law intituled " The ISecurity of Property.'
 
 486 OF THE SECURITY OF THE PERSON. [cH. v. 
 
 But there is still an important condition, which at one 
 stage of progress in nearly every nation and community, 
 at once concentrated all the evils and disagreeable incidents 
 —all the bitterness and humiliation — of compulsion, and 
 that was personal slavery. That was a state of life in which 
 one human being was the tool and property of another 
 human being — in which one was alone the dictator and 
 alone in possession of a will and a discretion, and the 
 other was used as a mechanical medium for obeying that 
 will and giving effect to that discretion. It was a state 
 in which one human being was degraded by another as 
 low as the lower animals, was in almost every respect 
 identified with cattle or mere articles of property. Though 
 in modern times the very idea of personal slavery "is 
 blotted out, yet part of the condition of a slave consisted 
 of certain personal services which might be severed from 
 other incidents of the slavish state. These services may 
 be bought and sold, accej)ted and given for a price or 
 reward, and treated like an ordinary contract, discharged 
 of all the odium and contempt which slavery inevitably 
 carried with it. Such services are to a great extent now 
 embodied in the contract of hiring, whicli, like other con- 
 tracts, may be undertaken and carried out between man 
 and man without any sense of degradation or inferiority 
 on one side more than the other — in which each party 
 stands at arm's length, and stipulates freely how far he 
 is to be liable in any contingency and what risks and 
 liabilities he encounters, if for any cause he cannot or 
 does not carry out his engagement. Though a contract of 
 hiring now differs in few respects from other contracts, and 
 must be treated in its order under the division of law 
 relating to contract, yet, owing to the close connection 
 slavery once had with the chronic and settled condition of 
 compulsion, and the large figure tliat the change from that 
 degraded state has made in history, it may be well not to 
 close this cliapter without some short account of the 
 gradations, by which the slave became a freeman — how 
 at last an indelible sense of equality among all degrees 
 and orders of men and women has been attained and 
 become the most familiar sentiment at the root of all law, 
 and which when once experienced can never be relinquished. 
 Thougli we can no longer even tolerate the faintest suspi-
 
 «;ii. v.] SLAVERY. 487 
 
 cion of reverting to times of slaver}' any more than ot 
 going back to the basest conditions of the savage state, it 
 is wholesome to remember from what low beginnings 
 freedom has sprung, so that all nations and communi- 
 ties still groping in darkness and misery may see before 
 them the shining heights to M'hich they may aspire, and 
 for which they must fight to all extremities, never losing 
 sight of their final goal. 
 
 Universal prevalence of slavery. — In every age and 
 (country until times comparatively recent, personal servi- 
 tude appears to have been the lot of a large, perhaps the 
 greater, portion of mankind.^ And though the ancients 
 thought tlie Chiai-S were the first, who resorted to it, it 
 is idle to attempt to solve the question, how the mysterious 
 gravitation towards this settled state of personal relations 
 wliich all early societies have exhibited must have been 
 brought about. The Mosaic law dealt with slavery as an 
 institution then existing and requiring regulation. And 
 even slavery at its worst has been deemed a mitigation of 
 a still more barbarous state, when enemies w'ere roasted 
 and eaten, or at least indiscriminately put to death.^ 
 
 ' 1 Hallam, Mid. Ag. 197. 
 
 '-^ Among the Jews, recorded in the Old Testament, slavery existed 
 in two stages : one was the most abject or absolute slavery, the 
 otiier was rather compulsory servitude for life : strangers were liable 
 to the former, Hebrews to the latter. — Exod. xxi. 2. If a master 
 killed the slave, the slave was avenged. — Exod. xxi. 20, 21. The slave 
 could be redeemed. — Levit. xxxv. 47. And he had the option of his 
 freedom in tlie sabbatical year. — Deut. xv. 12. And when discharged 
 he was entitled to a stock of provisions. — Deut. xv. 14. If the slave 
 was despoiled of a tooth, his injury was redeemed by instant free- 
 dom. — Exod. xxi. 26. Man stealing was a capital offence, but only 
 wlien the stealing affected one of the Jewish nation. — Exod. xxi. 16 ; 
 Deut. xxiv. 7. Not only were there slaves to persons, but slaves 
 dedicated to God. — 1 Sam. i. 11. A redeeming feature of Jewish 
 slavery was, tbat each slave acquired freedom at tlie end of the 
 seventh year, and was exempt from all work on the Sabbath day. — 
 Afichaelis, art. 127. Slaves were obtained, not only from capture in 
 war, but from the practice of fathers selling their children and 
 creditors selling their debtors. — MichaeUs, art. 123. 
 
 In ancient Mexico no one was born a slave, though he could, from 
 poverty, give himself up to slavery. — Prescotfs Mexico. The Chinese 
 and Javanese used also to gamble away their wives and children 
 as slaves. — 4 Univ. Mod. Hist. 477. The Chinese code, however, 
 punished parents who sold their children.— /Stouniore, Code^ 292.
 
 488 OF THE SECURITY OF THE PERSON. [ch. v. 
 
 The Greeh and Roman slavery. — The Greek and Eomau 
 philosophers seem never to have risen higher than the 
 fundamental assumption, that slavery was a natural and 
 inevitable institution in all societies, but that slaves 
 should be protected against unnecessary cruelty ; and some 
 steps were at last, and after long experience and delay, 
 adopted to give effect to this latter view.^ 
 
 Slavery in the, early Christian centuries. — The progress 
 of legislation for two hundred years after the conversion 
 of Constantine did not much advance the protection of 
 slaves.2 The withholding of the status of marriage to the 
 
 The Loo Chew Japanese could sell themselves to slavery. — 1 Perry's 
 Japan., 226. 
 
 1 Plato said slaves, though entitled to kindness and justice, must 
 be kept at arm's length, this being best for both parties. — De Leg. 
 b. vi. c. 19. And slavery of Greeks was immoral, though not so as 
 regards foreigners.— PZa<. Rep. v. 14. Aristotle assumed that slaves 
 were born, and must remain slaves, and slaves nmst always exist. — 
 ArUt. Pol. b. i. c. 6. 
 
 The Spartans treated the Helots with contempt, clothed them in 
 sheep-skin, with a dog-skin hat, flogged them once a year, that they 
 might remember they were slaves, made them drunk as a warning to 
 their children, and during the Crypteia sent their youths out by 
 night to assassinate all the slaves they could find, so as to acquire 
 dexterity in the assassin's art, and thin their redundant population. 
 — Plut. Lycurg. 
 
 The Roman law divided all persons into freemen and slaves.— 
 Inst. i. 3. Gains says in all nations alike the master has the power 
 of life and death over the slave, and whatever is acquired by tlie 
 slave is acquired for the master. — Dig. i. 6, 2. 
 
 As Gibbon observes, at the call of indigence or avarice, the Roman 
 father could dispose of his children or his slaves. Neither age nor 
 rank, nor the consular office, nor the honours of a triumph could 
 exempt the most illustrious citizens from the bonds of filial sub- 
 jection. — Gibbon, Rom. Emp. c. 44. 
 
 Every Roman farm had its slave-prison, or ergastulum, for torturing 
 and imprisoning the refractory and keeping them in chains, till 
 Hadrian abolished it.— Brisson, Ant. SeL ii. 9. Cato sold off his 
 old slaves, and brought up young slaves for market, precisely as a 
 racing-stud or cattle-farm is now managed. — Plut. Cato. 
 
 Antoninus was thought to have enacted a humane thing when he 
 niade the putting to death of one's own slave the same offence as 
 killing the slave of another ; and he allowed a slave to complain of 
 the cruelty of his master, in which case the master could be ordered 
 to sell his slave. Claudius made it murder to kill an infirm slave. — 
 Suet. Claud. And it was enacted afterwards that slaves should be 
 sold in families with parents, and that family relations were not 
 Be verable.— Corf. 3, 38, 11. '^ 2 Lecky, Hist. Mor. G7.
 
 t;H. v.] SLAVERY. 489 
 
 union of slaves, and the licence of torture, still remained 
 as before. Though the early Christians did not see the 
 true ground of the essential criminality of slavery, but 
 rather accepted and recognised it as a dispensation of 
 Providence, and merely tried to soften its rigours, yet 
 an impetus was given by Christian practices and doctrines 
 to the view of the natural equality of men. The early 
 assembling of Christians on such footing of equality was 
 what struck all governors as a fearful and wonderful thing, 
 and fraught with revolutionary tendencies. Masters who 
 tortured or seduced slaves were excluded from the com- 
 munion. Every slave rose in dignity as the possessor of 
 an immortal soul. The virtues extolled by Christianity 
 were those which were most akin to the lowliest and 
 suffering classes. The manumission of slaves on a large 
 scale became a notable offering on Christian festivals. 
 And the doctrine and practice of Christian charity gradu- 
 ally became general.^ Under Justinian a great advance 
 was made in the position of slaves. The restrictions on 
 enfranchisement were abolished, and manumission was en- 
 couraged by the Christian Church. The state of freedman 
 intermediate between slave and citizen was virtually 
 abolished. A slave was permitted to marry a free woman 
 with the authorisation of the slave's master, and children 
 born in slavery became the legal heirs of their emancipated 
 father. The rape of a slave woman was punished, like that 
 of a free woman, by death. ^ 
 
 Anglo-Saxon slavery. — Tacitus says the ancient Germans 
 could kill or chastise their slaves with impunity.^ And 
 that the same people would in their sports gamble away 
 their own freedom and submit to be bound and sold.* 
 Slavery was also a primitive institution of the Anglo-Saxon 
 race.^ Among the Anglo-Saxons the lowest class of peasants 
 were sold like cattle and given away as presents, the heads 
 of the church dealing in the traffic with equanimity. 
 Fathers, if poor, could sell their sons to slavery for seven 
 years, with their consent.^ The children of slaves were slaves 
 
 1 2 Lecky, Hist. Mor. 70-73. « 2 Lecky, Hist. Mor. G9 ; 
 
 Wallon, toine iii. ; Cliampagny, Charity, p. 214. ^ Tacit. Germ, 
 
 c. 25. ^ Ibid. c. 24. » i Stubbs, Const. H. 78 ; 1 Keuible, Sax. 
 185 ; 2 Sh. Turner, 96. 6 i Kemble, Sax. 199.
 
 490 or THE SECUKITY OF THE PERSON. [ch. v. 
 
 also. A slave might be whipped, or branded, or yoked to 
 a team, or sold to foreigners, at the discretion of the lord. 
 King Alfred was deemed to have made a great advance by 
 procuring the wittenagemot to enact a law, that a Christian 
 slave, if bought, should be free after serving six years, 
 unless the latter consented to remain a slave, when the 
 master might bore his ear at the church door, and so earmark 
 him as his own property.^ The laws of Cnut enjoined, 
 that Christians were not too readily to be sold out of the 
 land.^ There was no civil punishment however for a mas- 
 ter killing his slave.^ Before the Norman Conquest the 
 slave was still treated as a mere chattel, and what would 
 now be deemed a trifling irregularity brought down upon 
 him the punishment of death by hanging. The churl also 
 who could not pay a penalty could be sold as a slave.^ 
 
 English slavery after the Conquest. — The laws of William 
 the Conqueror and Henry I. recognised the practice of 
 manumission as existing.^ And this is always an import- 
 ant mitigation of the general evil. At that time the 
 lowest orders consisted of churls, or villeins, who cultivated 
 a piece of ground and performed onerous services to the 
 lord in respect of it. As these services became better 
 defined and more certain, the villein rose in dignity, and 
 this was the case by the time of Edward I.*" Soon after 
 the Conquest the name of slave proper had disappeared, and 
 all of that class seemed to be recognised- as villeins. Of 
 these there were two kinds : the villein in gross, who was 
 bound to the person of the lord, and the villein regar- 
 dant, who was bound to follow the land which he tilled. 
 But the one class was easily convertible into the other. 
 "When the manor was sold, the villeins regardant passed 
 with it by implication of law. The deed poll by which 
 he was sold described the piece of land, and certified that 
 the villein was sold with it and all his issue, present and 
 i'uture, and all his goods.'' This was also the practice 
 throughout Europe, and the coloni could not be separated 
 
 1 1 K. Alfred's Life, 446. 2 Aiic. Laws, Cnut, 162. ^ Anc. 
 
 Laws, 272 n. ^ Ancient Laws of England, K. Ine 24 ; Athelstan, 
 Pro-oem. ; Leg. Will. Conq. iii. 15. ^ Anc. Laws, Will. Conq. iii. 
 § 15 ; Hen. I 78, § 1. « Dugd. Warw. 416, 457. 7 Britt. b. i. 
 c. 32, § 5 ; Mirr. c. 2, § 28 ; Kcnnctl, Par. Ant. 288.
 
 CH. v.] SLAVERY. 491 
 
 and sold apart from the estate on which they worked.^ The 
 lord could indeed let out the villeins to serve others, and 
 was entitled to the payment earned ; and it was only by 
 exceptional favour that they were allowed to keep the 
 wages earned by serving others than the lord. There is 
 some obscurity, however, as to whether the lord could or 
 could not sever the villein regardant from the land.^ 
 AVliile a lord could recover his villein as he could his ox, 
 by an action of trover, it was equally true that imprison- 
 ment of a villein was as idle a distinction as the imprison- 
 of an ox.^ And yet it was in course of time treated as 
 murder for a lord to kill his villein.* 
 
 It is humiliating to reflect, that all the boasted liberties re- 
 ferred to in Magna Cliarta, which embodied the best thoughts 
 of the most powerful men of the day, related only to free men, 
 and that no notice, excepting in one small matter, was 
 taken of the inferior beings called villeins, who remained so 
 long afterwards in the condition of cattle. The Mirror says, 
 the Great Charter omitted them because they had nothing 
 to lose.^ The champions of the liberty of the subject in 
 the time of Charles I. equally forgot that their grand 
 declamations all began and ended with themselves, and did 
 not concern the down-trodden class beneath them. St. 
 John and Littleton argued that they, the born freemen of 
 the land,were treated by the crown and the crown's minions 
 as no better than villeins.^ And it never occurred to them 
 
 • Guizot, Civ. Fr. lect. 7. 2 Ljtt. § 181 ; 1 Pike' on Crime, 327. 
 ■* Year B., 22 Ed. I. 446 ; 32 Ed. I. 55. 
 
 '' Britt. b. i. c. 32. It would be idle to notice the frivolous dis- 
 tinctions that courts busied themselves with as to the presumptions 
 of law for and against freedom. It was considered creditable that 
 in England the child of a villein woman was free, if the father was 
 free, contrary to the rule in Koman law. — Britt. b. i. c. 32, § 4 ; 
 Glanv. b. V. c. 6 ; 1 Hull. Mid. Ag. 4. If villeins ran away, as 
 they used to do, to the towns, or hid themselves as they best could, 
 the lord could onlj^ reclaim them within a year and a day. — Britt. 
 b. i. c. 32 ; 2 Rot. Pari. 21, 448 : 9 Rich. II. c. 2. If once a villein 
 became free, his issue became free. — Britt. b. i. c. 32, § 6. Unless it 
 could be proved that a villein and his ancestors had been villeins 
 from time immemorial, then the presumption of freedom prevailed. 
 Litt. §§ 176-185 ; Britt. b. i. c. 31. This led to the practice of 
 villeins, in defence, quoting Domesday Book to rebut the ancient 
 user.— 1 Rich. II. c. 6 ; 2 Rich. II. st. 2, c. 2. 
 
 5 Mirr. c. 2, § 28. »^ 3 St. Tr. 86, 1263.
 
 492 OF THE SECUEITY OF THE PERSON. [cH. v. 
 
 that the principles for which they so bravely contended 
 should have embraced all conditions of their fellow men. 
 Even Bacon seemed still to be labouring under the notion 
 that villeinage was part of the law of nature.^ And Coke 
 alludes to villeins as miserable creatures, and scarcely 
 recognises them as men at all.^ Cook says in argument, 
 that in the 11 Elizabeth, one Cartwright brought a slave 
 from Paissia and would scourge him cruelly, for which 
 he was questioned, and it was resolved that " England was 
 too pure an air for slaves to breathe in." ^ The principle 
 embodied in this noble figure of speech, the recorded result 
 of a resolution of the judges, seemed, however, not to sink 
 as it ought to have done into the general conscience of the 
 nation, and to have been logically carried out. But Lord 
 Mansfield said that in the reign of Charles II. there were 
 only two slaves left in England at the abolition of tenures, 
 and the last confession of villeinage extant was in 19 
 Henry VI.^ 
 
 Modern view of indefensible nature of slavery. — Guizot 
 says, that it is going too far to say, that the abolition of 
 slavery in the modern world was entirely the work of 
 Christianity. A great development of new ideas was 
 required to abolish this iniquity of iniquities.^ The genius 
 of Christianity, however, could not fail to sap and mine 
 this pagan institution, and so it was noticed in the time 
 of the Commonwealth.^ The rising of Wat Tyler in 1381 
 struck a blow at villeinage, and the landlords gave up the 
 
 > Bac. Max. 11. 2 2 Inst. 28. 3 3 st. Tr. 1351 ; 2 Rushw. 
 
 Coll. 468. 
 
 ■* 20 St. Tr. 78. De Tocqceville says that in no part of Germany, 
 at the close of the eighteenth century, was serfdom as yet com- 
 pletely abolished, and in the greater part of Germany the people 
 were still literally adscripti glebce as in the Middle Ages. Almost 
 all the soldiers who fought in the armies of Frederick II. and of 
 Maria Theresa were in reality serfs. As late as 1788 in most of the 
 German states a peasant could not quit his domain, and if he quitted 
 it he might be pursued in all places wherever he could be found, and 
 brought back by force. He could neither improve his condition, nor 
 change his calling, nor marry without the will of his master.— De 
 Tocqueville, Soc. in Fr. b. ii, c. 1. Up to the time of Somersett's Case 
 before Lord Mansfield (20 St. Tr. 79), there had been a tolerance in 
 England of the practice of foreign masters controlling their slaves ; 
 and it is said they were sold openiy on the Exchange and other 
 places of public resort. — Per L. 8towell, 2 Uagg. Aihn. 105. 
 
 5 Guizot, Civ. Eur. Lect. 6. « T. Smith, Com. 250.
 
 UH. v.] SLAVERY. 493 
 
 demand for base services, and ceased to reclaim truant 
 villeins.^ Wycliff' had also inculcated, that slavery was 
 contrary to the Christian religion.- Before slavery was 
 finally abolislied, there were timid reformers, who urged 
 that it would be going quite far enough, if they were 
 to regulate without absolutely abolishing it. Political 
 freedom, however, when examined, was found to sink into 
 nothing when compared with personal freedom. Burke 
 said that he himself had papers prepared in order to 
 advocate the regulation of slavery, but when Wilberforce's 
 motion came on, he instinctively burnt them, as he read 
 that the sorcerer's books were offered up and burnt at the 
 approach of the gospel.^ When an association was formed 
 to abolish the slave trade, and the public mind was besieged 
 with arguments, illustrations, and discussions, all pointing 
 to one result, the essential iniquity of that trade was 
 made self-evident. The resolute action of a few men 
 of high character and humanity carried all before them 
 by the aid of free discussion. In twenty years from first 
 prohibiting the importation of slaves by subjects of the 
 crown into foreign countries, parliament passed an act 
 rendering all dealings in slaves felony.'* 
 
 As the air of England is too pure for slaves to breathe 
 in, it is a maxim or elementary principle discovered and 
 created by statute, that no human being can have any kind 
 of property in another human being, whether he is a native 
 or a foreigner, and that all contracts, deeds, powers, and 
 acts, which are founded on such a notion, are altogether 
 void, to be disregarded and treated as if they never existed. 
 No quarter can be given, no parley can be held with the 
 doctrine, that slavery, or anything approaching it, was part 
 of the law of nature, though it may have been part of the 
 common law. The common law, indeed, had long strayed 
 from the right path, and was lifted out of the mire by the 
 legislature, which brought to bear higher views of morality 
 and religion than the common law had ever before dreamt 
 of. The rule, like a new informing soul, now pervades the 
 law — that all men are free, and that it is an abuse of 
 language to liken any relation that can exist between two 
 
 > 2 Stubbs, Const. H. 462. 2 Barringt. Stat. 311. 3 29 Pari. 
 Hist. 358 ; Acts xix. 19. * 46 Geo. III. c. 52 ; 5 Geo. IV. c. 113 ; 
 1 Clarksoii's Hist. Slavery, 288 ; 1 Wilberf. Life, 139,
 
 494 OF THE SECURITY OF THE PERSON. [CH. v. 
 
 human beings to the relation of proprietorship. The 
 analogy is and always was a false analogy. Property has 
 no meaning when used between man and man as subject 
 and object. There may be contracts and rights and wrongs 
 arising out of mutual duties ; but these are all made and 
 rest on the footing of entire equality — each treating all 
 others at arm's length — each exercising a discretion and 
 choice, and at the worst submitting to the consequences 
 of such choice. Slavery with all its distinctions and 
 qualifications, its essential vices, its cruelties and oppres- 
 sions, has been blotted out for ever from the book of 
 civilisation. Witli it has fallen into oblivion a brood of 
 monstrous and perverted fictions, the refuse of pagan 
 practices adopted and imitated by courts that knew no 
 better, and which no longer deserve to be named or re- 
 membered among men. It is true, that some niceties of 
 conduct require still to be borne in mind where subjects 
 of this country come in collision with the laws of other 
 countries, and seem driven to choose between acting on 
 one principle or its opposite. But these difficulties wholly 
 belong to that division of the law, entitled " the security 
 of foreigners," and require no further notice in this place. 
 It is enough to say, that our law, within the limits of 
 this country, knows no distinction between foreigner or 
 native, and treats all human beings, whencesoever coming 
 or going, as entitled to the same liberty. If any one is 
 seized or imprisoned or kept in subjection within English 
 territory, he can vindicate his freedom by the same well 
 known remedies. The whole posse cornitatus, all the civil and 
 military resources of the country are at the command of 
 any one human being, however insignificant, of any colour 
 or race or origin, who chooses to invoke them, so that he 
 may be at once restored to the position of a freeman, and 
 so that he may treat all the rest of mankind at arm's 
 length, and subject to no other qualifications than his own 
 free contract, or what duties the law imposes on all alike, 
 fur their common good and equal protection. 
 
 Whether a contract, to serve for life is valid. — The only 
 remnant of what was once known as slavery may be said 
 to be its modern shadow, a contract to serve another for 
 life. A court of law in 1837, was persuaded to hold, that 
 such a contract was valid, and that there seemed to be no
 
 cii. V.J SLAVERY. 495 
 
 objectiou to it.^ But tlie unanswerable objection to it is 
 this, that now since all courts are in possession of the ele- 
 mentary axiom that slavery cannot exist, this involves the 
 further proposition that no man can sell liimself to slavery 
 or renounce or abdicate the inherent rights of manhood, part 
 of which is to keep his own freedom well in hand. He 
 may contract in any way and every way he finds expedient 
 for his own interest, subject only to a reasonable term of 
 service. But a life contract is an absurdity. The utmost 
 a court can consistently hold is, that the servant can if he 
 pleases, and when he pleases, avoid a contract for life ser- 
 vice ; and unless a short term of a few years is specified, it 
 will be treated as only a contract from year to year.'-^ 
 
 Kidnapping and stealing human beings. — The stealing 
 or kidnapping of an adult person is an offence seldom 
 known in civilised countries, as it presupposes a degree of 
 combination and defiance of law, which the vigilance of 
 each individual, and the ready means of identification and 
 protection supplied by settled communities usually batfie. 
 As regards women and female children, indeed, the circum- 
 stances of civilised communities too readil}^ give rise to 
 offences now known under the name of abduction and child- 
 stealing, and these are more fitly treated of under that chapter 
 of variations in personal security caused by sex and infancy. 
 As regards adult men, the attempts to kidnap or secrete these 
 are usually punishable under the head of assault or false 
 imprisonment, for which actions, indictments, or habeas 
 corpus supply the remedies. In a less advanced stage of 
 society, the crime of kidnapping grown persons was treated 
 as a felony. Dut such a crime is now simply impossible, 
 according to the fundamental maxim, that no human 
 being can- become the property of another ; and hence the 
 offence resolves usually into one of false imprisonment.^ 
 
 ' Wallis V Day, 2 M. & W. 273. 
 
 2 The only autliority relied on for the doctrine was a note of a 
 case in Brooke's Abridgment, being a decision temp. Henry IV. 
 (1400), a time when villeins were the order of the day, and when 
 the courts had no more idea of the fundamental invalidity of 
 slavery than Plato and Aristotle had. 
 
 ^ It has been said that it was no uncommon occurrence, so late as 
 the commencement of the present century, for a man to sell his 
 wife.— 4 Bl. Com. (Christian's) 64 n. Such an offence is now 
 simply an impossibility, whatever may be the ignorance or credulity
 
 496 OF THE SECUEITY OF THE PERSON. [cH. v. 
 
 Penal servitude. — The case of penal servitude may in one 
 sense be likened to slavery, but it is essentially different. 
 It is only a form of punishment which is inflicted because 
 it is deemed necessary for the preservation of society, that 
 those who show a flagrant violation of the most vital of 
 its laws, should be prevented by force from repeating such 
 conduct, and be deprived of that power of doing mischief, 
 which is necessarily incident to a state of freedom.^ 
 
 of the persons, who suppose they go through the form of such a 
 sale or purchase. 
 
 • 4 Bl. Com. 11 ; 2 Inst. 315 ; Beccaria on Cr. c. 29 ; Co. Litt. 
 116 b.; Bracton, 1, 6, 2. As to punishment and its varieties, see 
 post, Chap. viii. 
 
 END OF FIRST VOLUME. 
 
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