121. The Laws of Solon*, and the proposed Laws of Platot, agree with those already mentioned, in making a wide distinction between the modes of resistance permitted against the nocturnal and the diurnal thief. It has been discussed among Jurists, what is the ground of this difference. The reason which they assign is this: that the Law does not allow a man to be put to death by a private hand, on account of an expected loss for which the law can give redress; but only on account of danger to the person, which may be beyond redress: that therefore by day, when the person attacked can see the extent of his danger, he is justified only to the extent of his danger, and so far as the wrongs are of an irremediable kind: but that by night, when the unknown extent of the danger may lead him to believe it extreme, and when aid and testimony are difficult to obtain, he is justified to the extent of his fear. The Law is willing to accept such justification, because it cannot afford him redress any other way. 122. When a person commits acts of violence against another, having received extreme Provocation, but not being in danger, by the Law of England, the provocation mitigates, but does not justify the offense. The Mitigation is not available, if there have intervened time sufficient for the passions to cool for if that be the case, the Law itself is ready to redress the injury. Hence, when two persons in cold blood meet and fight, any mischief done by one to the other cannot be excused by alleging previous Provocation. And thus, in the case of a Duel, in which the combatants take measures tending to destroy each other's lives, the Law has fixed the crime of Murder on them. 123. A person committing an act of violence may have others who assist or abet him, without their taking the same + Legg. Lib. ix. *Demosth. adv. Timocrat. share in the act which he does himself. He is the Principal, they are the Accessories. And these are distinguished into Accessories before the Fact, as those who urge a man to commit murder, and provide him with arms; and Accessories after the Fact, as those who harbour the murderer, knowing the crime to have been committed. Some distinctions are made in the assignment of punishment to Principals and Accessories: but absence when the crime is committed is requisite to make a man an Accessory. Thus the Seconds in a Duel are guilty of murder as Principals in the Second degree. 124. As we have said, the English Law does not allow Provocation to excuse acts of violence, except when there has been no time for passion to cool; and therefore does not acquit either of the combatants in a Duel on the ground of any provocation which he may have received. Yet the administration of the Law has often been so conducted, that it has seemed to recognize the Challenge as an excuse for the attempted Homicide. This inconsistency, between the letter and the practice of the Law, has, perhaps, in some measure, arisen out of the customs which prevailed in Europe some centuries ago, when Duels were permitted openly by Christian States; and the person who did not seek redress, by such means, against any expression of contempt or menace uttered against him, incurred general blame and contempt as a coward. 125. Among the justifiable acts of violence, we may notice those which the Law not only permits, but authorizes and commands; as the Imprisonment of criminals, and their Punishment by stripes, wounds, maiming, exile, or death. But in such cases, nothing is allowable which the Law does not require. To kill the greatest of malefactors extra-judically, that is, not according to the prescribed course of the administration of the Law, is Murder. Hence, if the judge who condemns, be not lawfully authorized to do so, he is guilty of murder. And the judgment must be executed by the proper Officer, for no one else is authorized by law to do it. The Judge may condemn, but must leave it to the Sheriff or his Deputy to execute the sentence. Even if the Officer alters the manner of execution, as if he beheads one adjudged to be hanged, it is murder. 126. Other cases in which Homicide is justifiable, because committed for the furtherance of the law, are these: when an officer, in the execution of his office, kills a person who resists him :-when prisoners assault the gaoler or officer, trying to escape, and he kills them :—when an assembly of persons (that is twelve, or more) has become riotous, and being required to disperse by the proper magistrates, refuse to do so. But it is added, by the expositors of these laws, that there must be in such cases an apparent necessity on the officer's side in order to justify him. It must appear that the culprit could not be apprehended, the prisoner could not be kept in hold, the riot could not be suppressed, in any other way. 127. There is another class of actions which may assume the aspect of infringements of the Rights of the Person, but which are justified in virtue of the Authority which the Law recognizes as residing in the persons who commit the acts. According to the English Law, the Father has an authority over his Children which entitles him to strike or constrain them, under certain conditions. A Master has a like authority over his Apprentice, and a Schoolmaster over his Scholar. In these cases, it is justifiable to beat or confine the pupil in a moderate degree, in the way of Chastisement or Correction. In cases of voluntary service, the Employer is allowed to exercise constraint over the hired Servant or hired Labourer, in whose services he for the time obtains a Right. Thus, I prohibit. my Ser vants from going out of my house except at stated times, and when I do not require their services. I have a Right to continued and active labour from the workmen whom I have hired. 128. In some countries, the Master has a legal Right to inflict stripes or other violence upon his Servant, the Landlord upon his Tenant, or one Class of the inhabitants upon another. In these cases the Class thus subjected possess in an imperfect degree the Rights of the Person. Such classes have been called by various names, in various ages and countries, according to their history and circumstances: as Helots, Vassals, Serfs; and when entirely divested of Rights, Slaves. We do not here inquire how far it is really consistent with justice and humanity that men should be thus partially or entirely deprived of Rights. But even when such Classes legally exist, the Law limits the power of the Master over the Dependent. Some such Dependents can be sold with the land, but cannot be separated from it: they are prædial Slaves, Serfs, Ascripti Gleba. Other · Slaves may be sold off the land, and disposed of at the will of the Master. These may be kept in the house for menial services, as domestic Slaves; or employed in various labours for the Master's benefit and at his pleasure. Thus the ancient Greeks and Romans employed slaves as their Artisans. The relations between Master and Servant, are thus connected with the relations between Landlord and Tenant; and thus point out to us a close connection between the Rights of the Person and the Rights of Property. 74 CHAPTER III. THE RIGHTS OF PROPERTY. 129. As we have already said, the existence of the Right of Property is requisite as a condition of the Free Agency of man, and the Peace and Order of Society (79). Accordingly, in all Countries such Rights do exist. In every form of Society, there are circumstances under which the necessaries and comforts of life,-food, clothing, tools, arms s—are held to belong to a man, so as to be his Property. The Rights of Property being established, the Sentiment of Rights and the Sentiment of Wrongs (98, 99) give great force and stability to the institution. We cling with strong and tenacious affection to what is our own. We earnestly approve the rule which makes it ours, and which consequently makes yours what is yours. A regard for the distinction of meum and tuum prevails. A reverence for Property is felt. The necessity of its existence, as a condition of human society, is generally perceived, and this perception gives force to the Rules by which Property is defined. These Rules are, in each particular case, supplied by the Law of the Land. The Law determines what shall belong to one man, and what to another. 130. With regard to some Kinds of Property, when they are thus assigned, the Right of the Proprietor or Owner shares itself in a distinct, visible form. The objects are taken hold of, carried about, used, consumed; as for instance, clothing, food, tools, arms. Things of this kind are moveable Property. Moreover, such Property may be retained by the Proprietor, or given by him to another person, at his pleasure. It may be given either absolutely, or on condition of receiving a return; that is, given in Barter or Exchange. |