make a publick acknowledgment of their offence, and to be bound to their good behaviour.

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

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

1

ment which, without necessity, ought not to be wounded, because it is delicate though it be mistaken.

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

m

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

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

o Id. 159.

VOL. III.

M

n 1. Haw. 158.

Mayhem is a crime committed by violently depriving one of the use of any part of his body, by losing the use of which he becomes less able, in fighting, to annoy his adversary or to defend himself." This is an atrocious breach of the publick peace and security. By it, one of the citizens is disabled from defending himself; by it, his fellow citizens are debarred from receiving that social aid which they are obliged to give; by it, the state loses those services, which it had a right to exact and expect. In ancient times, this crime was punished according to the law of retaliation: it is now punished with fine and imprisonment. 9

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

r

A rape is an irreparable and a most atrocious aggression on the right of personal safety. Besides the thousand excruciating, but nameless circumstances by which it is aggravated, some may be mentioned with propriety. It is a crime committed not only against the citizen, but against the woman; not only against the common rights of society, but against the peculiar rights of the sex: it is committed by one from whom, on every virtuous and manly principle, her sex is entitled to inviolable protection, and her honour to the most sacred regard.

P 1. Haw. 111.

9 4. Bl. Com. 206.

r Id. 219.

This crime is one of the selected few, which, by the laws of the Saxons, were punished with death. The same punishment' it still undergoes in the commonwealth of Pennsylvania. On this subject, for an obvious reason, particular observations will not be expected from a lecture in the hall: they are fit for the book and the closet only: for even the book and the closest they are fit, only because they are necessary.

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

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

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

$ 1. Laws Penn 135.

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

regulation, established by the constitution of the nation, and that of this commonwealth.

u

pro

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

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

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

,, у

▾ Cons. Penn. art. 6. s. 2.

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

Ante. vol. 2. p. 496.

* Art. 9. s. 21.

y Bac. on Gov. 40.