CHAPTER XXXVII.

PROTECTION TO POPULATION AND THE WEALTH OF THE COUNTRY.

§ 508 a. How Chapter divided. We shall consider, I. The Law's Protection to Population; II. Its Protection to the Wealth of the Country; III. Specially as to Food and the like.

I. The Law's Protection to Population.

§ 509. Abortion is one of the leading offences against population, therefore it is indictable at the common law. There are differences of opinion as to the stage of pregnancy essential to the common-law crime, 2 but the question is in our States generally settled by statutes. And nearly all the indictments are upon statutes, so that inquiries as to the common law are rather speculative than practical.

§ 510. 1. Criminal Homicide. — The wrongful destruction of a human being born into the world is a still graver offence against population. While it is a crime also against the individual whose life is taken, it is such against all who compose the State; since it deprives each of a support to which he is entitled. For it is neither possible nor desirable that men should be independent of one another. Therefore,

If a

2. Taking Life of one requesting - Persuading to Suicide. man voluntarily deprives of life another, who even requests it;

1 Stat. Crimes, § 744; fully treated of in § 740-762. And see 1 Russ. Crimes, 3d Eng. ed. 671. As to the attempt, see post, § 741.

2 Stat. Crimes, § 744, 745. 3 Post, § 547.

4 "The crime of homicide partly concerned the king, whose peace was infringed, and partly, as Bracton expresses it, the person who was killed." 2 Reeves Hist. Eng. Law, 3d ed. 9.

or stands by persuading him to take his own life, which is done, - he thereby commits murder.1 So,

§ 511. Suicide, by the English common law, is felony.2 But our law does not, like the English, allow in felony those forfeitures which alone can be inflicted on one whose life is ended; therefore self-murder is not practically an offence with us. Yet

we recognize it as criminal when the opportunity arises indirectly. * There are writers who maintain that men are naturally entitled to end their own lives at pleasure; 5 but this view accords neither with our instincts nor with our better reason, as certainly it does not with our law.

§ 512. 1. Leaving the Country, - to take up a residence abroad, is not in law equivalent to suicide. Among most civilized people it is deemed to be the right of the government, if it will, to prevent emigration to foreign lands. In practice, this right is not generally exercised except in emergencies; and then it is. And in England it is laid down, even in a very old 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. With us, there are no restraints on expatriation, which is free to all. Yet it is believed that a special emergency may justify a temporary forbidding here, the same as in England; and on this idea our government in some instances acted during the late civil war.

On the ques

2. Changing Allegiance Calling Home Citizens. tion whether or not a man may change his allegiance from one government to another, there has been some judicial discussion and a great deal of diplomatic, and of late the subject has become in a measure regulated by treaties. It would seem that

1 1 East P. C. 228, 229; Rex v. Hughes, 5 Car. & P. 126; Reg. v. Alison, 8 Car. & P. 418; Rex v. Dyson, Russ. & Ry. 523; ante, 259; Vol. II. § 1187. 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. Ledding. ton, 9 Car. & P. 79; C. v. Bowen, 13 Mass. 356, 7 Am. D. 154.

21 East P. C. 219; Rex v. Russell, 1 Moody, 356; Reg. v. Clerk, 7 Mod. 16; Hales v. Petit, 1 Plow 253, 260, 261; Rex v. Ward, 1 Lev. 8; Vol. II. § 1187. 3 Post, § 615, 616, 970.

4 Vol. II. § 1187, where the offence is more fully considered.

5 Dawes on Crimes, 72.

6 Anonymous, 3 Dy. 296, pl. 19.

according to the American doctrine, anterior to the treaties, though a citizen cannot lawfully leave his country when it needs his services and demands them, yet if, not being forbidden, he goes to another country and there assumes a new allegiance, the new relieves him from the old. Doubtless, according to both American and English doctrine, if, while no intent to cast off the old allegiance has been manifested, a citizen is abroad and his country requires his services, he may be called home, — a question not much considered among us. But according to what has hitherto been generally understood to be the English and perhaps the prevailing European law in the absence of a treaty, contrary to what the American publicists maintain, no nativeborn subject can ever so change his allegiance, by going abroad and taking upon himself the obligations of a new one, as to free him from the claims of the government under which he was born, provided it chooses to exercise its right.1

§ 513. 1. Injuring or Neglecting Self. Since one may not lawfully deprive the community of his support by taking his own life, he is not justifiable in abstracting the equivalent of life in another form. And the reasoning would seem to carry us still further; namely, that he may not be idle, or waste his goods, or neglect opportunities for self-improvement. Practically, however, to conduct the doctrine to this extent would be unwise, and it would trench on personal rights. Not undertaking to find its exact limits, it extends to

2. Mayhem. It has already been explained that a man is answerable criminally who inflicts on himself a mayhem. But

II. The Law's Protection to the Wealth of the Country. § 514. Injuries to One's Own Property. The law gives men full control over their own property, to do what they will with it, only not to the injury of their neighbors. They may, for instance, burn it. This rule promotes public wealth by stimulating private industry. Also

§ 515. Vagrancy, Idleness, &c. Men may ordinarily dispose

1 I have stated the doctrine in a general way, but I trust with reasonable accuracy, for the benefit merely of the student. It would be out of place here to collect the multitudes of authorities relating to the question.

seq.

2 Ante, § 259, 511.

8 Ante, § 259. See Vol. II. § 1001 et

See ante, § 260; U. S. v. Johns, 1 Wash. C. C. 363.

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 it down that a vagrant, as such, is not indictable.1 But we find from early times statutes authorizing summary proceedings against idlers, vagabonds, and rogues; to be regarded perhaps by us as regulations concerning paupers, not therefore belonging to our common law. 2 Generally, in our State, vagrancy has been legislated against to such an extent as to leave it unimportant what is the anterior or common law on the subject.3

5

Gypsies.

There are

4

§ 516. 1. Wandering Sailors Soldiers old English statutes against wandering mariners and soldiers, and against gypsies, probably not common law in any of our States. 2. The Game Laws of England, likewise, are not parts of our common law; but some of the States have statutory regulations of their own for the preservation of game. And we have statutes for the protection of domestic animals 8 and fish.9 § 517. Owling is an old offence both at the common law and under statutes; consisting, says Blackstone, of "transporting

1 Reg. . Branworth, 6 Mod. 240; it being added. "But if he be an idle 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; Anonymous, 11 Mod. 3; Rex v. Miller, 2 Stra. 1103; Rex v. Talbot, 11 Mod. 415; Claxton's Case, 12 Mod. 566; Rex v. Brown, 8 T. R. 26; Rex v. Patchett, 5 East, 339; Soldier's Case, 1 Wils. 331; Rex v. Rhodes, 4 T. R. 220; Rex v. Hall, 3 Bur. 1636; 4 Bl. Com. 169; Dawes on Crimes,

81.

2 For a comparison of the English and Irish statutes, see 1 Gab. Crim. Law, 908. And see ante, § 508.

8 In S. v. Maxey, 1 McMul. 501, the court held the South Carolina statute of 1836, concerning vagrants, to be constitutional. Likewise the New York statutes are constitutional. P. v. Forbes, 4 Par. Cr. 611 Also the Illinois, Ex parte Ferrier, 103 Ill. 367, 42 Am. R. 10. For several points under the statutes, see this case; also P. v. Gray, 4 Par. Cr. 616; C. v. Holloway, 5 Binn. 516; C. v. Murray, 14 Gray, 397; C. v. Carter, 108 Mass. 17;

S. v. Custer, 65 N. C. 339; Boulo v. S. 49 Ala. 22; Allen v. S. 51 Ga. 264; Walters v. S. 52 Ga. 574; S. v. Cummins, 78 Ind. 251; Price v. S. 67 Ga. 723. For more of the statutory offence, with the proceedings on the statutes, see Dir. & F. § 1004-1010. 4 4 Bl. Com. 165.

5 Ib.

6

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, Car. & P. 300; Rex v. Caradice, 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.

7 Stat. Crimes, § 1133-1135; Dir. & F. $ 435-440. Deer-killing. A Vermont statute, forbidding for ten years the killing of deer running at large, was adjudged constitutional. S. v. Norton, 45 Vt. 258. 8 Stat. Crimes, § 431-449; Dir. & F. § 163-177.

9 Stat. Crimes, § 1128-1132; Dir. & F. § 435-440. As to the constitutionality of this legislation, Lawton v. Steele, 119 N. Y. 226; S. v. Blount, 85 Mo. 543.

wool or sheep out of this kingdom to the detriment of its staple manufacture." It ceased by 5 Geo. 4, c. 47, § 2, to be indictable in England; and probably no one deems it ever to have been a crime in this country.2

III. Specially as to Food and the like.

§ 518. 1. Conspiracies, which are a particular sort of combination of men to do wrong, are not within the present elucidations. We are here inquiring what acts are indictable when done, without a conspiracy, by a single individual. Still the reader should carry in his mind, what is too often overlooked, the prime legal truth that a conspiracy, or confederation of two or more persons, to do a thing not of the indictable sort — that is, not indictable though actually executed by one alone may be a crime. The principal matter for this sub-title relates to some old offences; particularly

Forestalling, Regrating, and Engrossing : 4

2. How in England. These are kindred offences, indictable. both under the ancient common law and by early English statutes, yet seldom made the subject of a criminal prosecution in modern times. And in England they were abolished, in 1844, by 7 & 8 Vict. c. 24, both as common-law offences and as statutory.

§ 519. 1. old Definings. It would be difficult to define these offences under the old common law; because, in England, the early statutes practically took the place of the unwritten rule, leaving it now uncertain what were its precise limits. Blackstone simply reproduces the statutory definitions from 5 & 6 Edw. 6, c. 14, as follows:

2. Forestalling is "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.” 5

3. Regrating is "the buying of corn or other dead victual

1 4 Bl. Com. 154 and note.

2 See ante, § 451-455.

8 Vol. II § 172, 178, 180-183, 189, 198218, 220, 225, 234, 235.

For the procedure connected with

these offences, see Crim. Pro. II. § 348350, 396, 397.

6 For the form of the indictment and other like matter, see 2 Chit. Crim. Law, 527-538, under the Alabama statute, Griffin v. S. 39 Ala. 541.