Изображения страниц


ment lies at the common law, though, if she does not consent, the act is an aggravated assault.1 The Pennsylvania court, however, discarded this doctrine of the necessity of a quickening; and the learned judge who delivered the opinion remarked with great force: "It is not the murder of a living child which constitutes the offence, but the destruction of gestation by wicked means and against nature. The moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated."2 If we look at the reason of the law, we shall prefer the Pennsylvania doctrine; because the public and private mischiefs are the same, whether the abortion takes place just before or just after the first movings of the coming human existence are perceptible to the expectant mother. The phrase, "quick with child," has been defined to mean, that the woman has felt the child move within her; and a distinction between this expression and "with quick child," once taken by a learned judge,1 has been discarded.5


§ 387. But the destruction of a human being born into the world is a still graver offence. We most frequently contemplate it as a crime against the individual whose life is taken; and, as such, we shall mention it again further on. But it is also a crime against population. It is moreover a crime of a yet wider nature, as directed against the entire community; for it takes from every man one of the supports on which he, with all other men, is entitled to rest; since neither

1 Commonwealth v. Parker, 9 Met. 263; Commonwealth v. Bangs, 9 Mass. 387; The State v. Cooper, 2 Zab. 52.

2 Mills v. Commonwealth, 1 Harris, Pa. 631, 633, opinion by Coulter, J. Goldsmith's case, 3 Camp. 76; Reg. v. Phillips, 3 Camp. 76.

4 Reg. v. Wycherley, 8 Car. & P. 262; and see this case for an interesting note by the reporter, showing, on medical authority, that "the popular idea of quick or not quick with child is founded in error."

'The State v. Cooper, 2 Zab. 52, 57; also Rex v. Russell, 1 Moody, 356, 360.


and see the authorities there cited; See The State v. Smith, 32 Maine,

is it possible nor desirable for men to be independent of one another. Therefore if one voluntarily deprives of life another, who even requests it; or stands by persuading another to take his own life, which he does, he commits murder thereby. So, by the English common law, suicide is felony; but our law does not allow, like the English, in any cases of felony, those forfeitures which alone can be inflicted on one whose life is ended; in consequence whereof, this offence of suicide is practically unknown in the United States. Yet we recognize the act of self-destruction as criminal, when the opportunity of doing so arises indirectly. There are writers who have maintained, that men are natu rally entitled to end their own lives at pleasure; but this view accords neither with our instincts, nor with our better reason. It is however the prevalent American opinion, that every man may seek his pleasure or profit by emigrating to any place he pleases in this world; and so we have no laws, which have ever been enforced, against expatriation. Indeed it is laid down in a very old English case, that a man may lawfully depart from the realm "solely with the intent that he might live there free from the laws of this realm here, and not for any cause of traffic," when no "express prohibition or restraint by proclamation, or writ" stands in his way.1

§ 388. The same reason which forbids a man to take his own life forbids him also to deprive otherwise the community of the support to which it is entitled from him, or voluntarily

11 East P. C. 228, 229; Rex v. Hughes, 5 Car. & P. 126; Reg. v. Alison, 8 Car. & P. 418; Rex v. Tyson, Russ. & Ry. 523. There is some diversity of judicial opinion as to the legal liability of a party at whose persuasion another, in his absence, kills himself. See Vaux's case, 4 Co. 44; Rex v. Russell, 1 Moody, 356; Reg. v. Leddington, 9 Car. & P. 79; Commonwealth' v. Bowen, 13 Mass. 356; post, § 459.

21 East P. C. 219; Rex v. Russell, 1 Moody, 356; Reg. v. Clerk, 7 Mod. 16; Hales v. Petit, Plow. 253, 260, 261; Rex v. Ward, 1 Lev. 8.

3 Dawes on Crimes, 72.

* Anonymous, Dy. 296, pl. 19.

to cast on it the burden of his maintenance.

How far acts

in disregard of this proposition are practically punishable is not clear. We have already seen, that a man is answerable to the criminal law who inflicts on himself a mayhem.1 But how much further the doctrine goes is uncertain.2

§ 389. The law gives men almost unlimited control over their own property, to do what they will with it, only not to injure their neighbors. They may, for instance, burn it. This rule promotes public wealth, by stimulating private industry. So men may ordinarily dispose of their time as they will. And it is not clear that the ancient common law of England took notice of mere idleness and vagrancy as criminal; indeed one case lays down the doctrine, that a vagrant, as such, is not indictable. But we find, from the earliest times, statutes providing for summary proceedings before magistrates against idlers, vagabonds, and rogues; which statutes may perhaps be regarded as regulations of the kingdom concerning paupers, belonging not therefore to our common law.5 In most or all of the States of the Union, vagrancy has been made matter of legislation, to such an extent that it is of little practical consequence to know what is the common law on the subject. There are some old English enactments, against wandering mariners and sol

[blocks in formation]

See ante, § 343; United States v. Johns, 1 Wash. C. C. 363.

* Reg. v. Branworth, 6 Mod. 240. It being added: "But, if he be an ille and loose person, you may take him up as a vagrant, and bind him to his good behavior, by the common law." See Rex v. King's Langley, 1 Stra. 631; Reg. v. Egan, 1 Crawf. & Dix C. C. 338; 4 Bl. Com. 169; Dawes on Crimes, 81.

For a comparison of the English and Irish statutes, see 1 Gab. Crim. Law, 908. And see ante, § 384.

"In the State v. Maxcy, 1 McMullan, 501, the court held the South Carolina statute of 1836, concerning vagrants, to be constitutional.

diers,1 and against gypsies,2 probably never adopted into the common law of any of the States. The same may be said of the game laws of England,3-though some of the older States have statutory regulations of their own for the preservation of game.

§ 390. Owling is an old offence, both at the common law and under statutes; consisting, according to Blackstone, in "transporting wool or sheep out of this kingdom, to the detriment of its staple manufacture." It ceased by Stat.: 5 Geo. 4, c. 47, § 2, to be indictable in England; and proba bly no one considers that it ever had an existence as a com mon law crime in this country.

§ 391. Concerning the old English offences of forestalling, regrating, and engrossing, greater difficulty arises. "The offence of forestalling the market," says Blackstone, "is an offence against public trade. This, which (as well as the two following) is also an offence at common law, was described by statute 5 & 6 Edw. 6, c. 14, to be the buying or contracting for any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods, or provisions there; or persuading them to enhance the price, when there any of which practices make the market dearer to the fair trader. Regrating was described by the same statute to be the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. For this also enhances the price of provisions, as every successive seller must have a successive

14 Bl. Com. 165.

2 4 Bl. Com. 165.

3 2 Bl. Com. 419, note; 4 Ib. 143, 173. See Reg. v. Nickless, 8 Car. & P. ↑ 757; Rex v. Passey, 7 Car. & P. 282; Rex v. Lockett, 7 Car. & P. 300; Rex v. Carradice, Russ. & Ry. 205; Reg. v. Uezzell, 2 Den. C. C. 274, 4 Eng. L. & Eq. 568; Rex v. Southern, Russ. & Ry. 444; Rex v. Smith, Russ. &! Ry. 368; Reg. v. Hale, 2 Car. & K. 326.

4 Bl. Com. 154 and note.

profit. Engrossing was also described to be the getting into one's possession, or buying up, large quantities of corn or other dead victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion. And so the total engrossing of any other commodity, with an intent to sell it at an unreasonable price, is an offence indictable and finable at the common law." Now, there is little difficulty in saying, that regrating, simply as above described, can hardly be a common law crime in the United States; 2 because it would bind down that freedom of trade which the good-sense of the people has always considered essential to the general prosperity. But although, in so wide and wealthy a country as ours, there is small chance so to practise the various species of forestalling as effectually to injure the community, we may doubt whether it is to be altogether expunged from our list of common law crimes. Yet the consideration is of weight, that seldom or never are prosecutions for these offences undertaken in the United States, though trade is nowhere more busy and unscrupulous than here. If they were generally esteemed proper subjects for indictment, surely indictments would be found; since the material is abundant.

VII. Protection to the Public Convenience and Safety..

§ 392. The public convenience and safety are matters of general regard; and all wrongful violations of either, suffi- . cient in degree, are indictable at the common law. There

1 4 Bl. Com. 158.

And see Rex v. Davies, 1 Rol. 11; Rex v. Waddington, 1 East, 143; Rex v. Webb, 14 East, 406; Pratt v. Hutchinson, 15 East, 511.

2 There is grave doubt, whether it is a common law offence in England. Rex v. Rusby, 4 Bl. Com. 158, note.

* And see Louisville v. Roupe, 6 B. Monr. 591.

Ante, § 320-324.

« ПредыдущаяПродолжить »