them? If you are of that opinion, you ought to convict him." Timmins' case, 7 C. and P. 499 (a).

To make the captain of a steam-vessel guilty of manslaughter, in causing a person to be drowned by running down a boat, the prosecutor must show some act done by the captain, and a mere omission on his part in not doing the whole of his duty is not sufficient. But if there were sufficient light, and the captain of the steamer is either at the helm, or in a situation to be giving the command, and does that which causes the injury, he is guilty of manslaughter. Per Parke, J., and Alderson, B. Green's case, 7 C. and P. 156 (b). And see Allen's case. Id. 153 (c).

The prisoner was indicted for manslaughter, and it appeared that it was his duty to attend a steam-engine, and that on the occasion in question he had stopped the engine, and gone away. During his absense, a person came to the spot and put it in motion and being unskilled was unable to stop it again, and in consequence of the engine being thus put in motion, the deceased was killed. Alderson, B., stopped the case, observing, that the death was the consequence not of the act of the prisoner, but of the person who set the engine in motion after the prisoner went away, and that it was necessary, in order to a conviction for manslaughter, that the negligent act which caused the death, should be that of the party charged. Hilton's case, 2 Lew. C. C. 214.

It is sometimes very difficult to trace the boundaries between manslaughter and misadventure, as in the following case:-A man found a pistol in the street which he had reason to believe was not loaded, he having tried it with the rammer. He carried it home and showed it to his wife, and she standing before him, he pulled the cock and touched the trigger. The pistol went off and killed the woman, and this was ruled to be manslaughter. Kel. 41. Admitting, says Mr. Justice Foster, that this judgment was strictly legal, it was, to say no better of it, summum jus. But he continues, I think it was not so; for the law in these cases does not require the utmost caution that can be used; it is sufficient that a reasonable precaution, what is usual and ordinary in the like cases, should be used. Foster, 264. Mr. Justice Foster mentions a similar case which occurred before himself; "I once upon a circuit tried a man for the death of his wife by a like accident. Upon a Sunday morning the man and his wife went a mile or two from home with some neighbors, to take a dinner at the house of their common friend. He carried his gun with him, hoping to meet with some diversion by the way. But before he went to dinner he discharged it and set it up in a private place in his friend's house. Af[ *658] ter dinner *he went to church, and in the evening returned home with his wife and neighbors, bringing his gun with him, which was carried into the room where his wife was. He, taking it up, touched the trigger when it went off and killed his wife, whom he tenderly loved. It came out in evidence that while the man was at church, a person belonging to the family privately took the gun, charged it, and went after some game, but before the service at church was ended restored it, loaded, to the place whence it was taken, and where the defendant, ignorant of what had passed, found it to all appearance as he had left it. I did not," says Mr. Justice Foster, "inquire whether the poor man had examined the gun before he carried it home, but being of opinion, upon the whole evidence that he

(a) Eng. Com. L. Rep. xxxii. 600. (b) Id. 477. (c) Id. 475.

had reasonable grounds to believe that it was not loaded, I directed the jury, that if they were of the same opinion, they should acquit him, and they did acquit bim accordingly." Foster, 265.

1

Parents, masters, and other persons having authority in foro domestico, may administer reasonable correction to those under their care, and if death ensue without their fault, it will be no more than accidental death. But if the correction exceed the bounds of moderation, either in the measure or in the instrument made use of for the purpose, it will be either murder or manslaughter, according to the circumstances of the case. Foster, 262. Thus, where a master struck a child, who was his apprentice, with a great staff, of which he died, it was ruled to be murder. Hale, P. C. 474. Speaking of homicides of this class, Mr. Justice Foster says, If they be done with a cudgel or other thing not likely to kill, though improper for the purpose of correction, it will be manslaughter; if with a dangerous weapon likely to kill or maim, it will be murder; due regard being had to the age and strength of the party. Foster, 262. Thus where a master directed his apprentice to do some work in his absence, and on his return, finding it had been neglected, threatened to send the apprentice to Bridewell, to which he replied, "I may as well work there, as with such a master," upon which the master, striking him on the head with a bar of iron which he had in his hand, killed him, it was held murder; for if a father, master, or schoolmaster, correct his child, servant, or scholar, it must be with such things as are fit for correction, and not with such instruments as may kill them; and a bar of iron is not an instrument of correction. Grey's case, Kel. 64. 1 Russell, 461.

Though the correction exceed the bounds of moderation, yet the court will pay regard to the nature of the provocation, where the act is manifestly accompanied with a good intent, and the instrument is not such as will, in all probability, occasion death, though the party be hurried to great excess. A father, whose son had been frequently guilty of thefts, of which complaints had been made, had often corrected him. At length the son, being charged with another theft, and resolutely denying it, though proved against him, the father in a passion beat his son by way of chastisement with a rope, by reason of which he died. The father expressed the utmost horror, and was in the greatest affliction for what he had done, *intending only to have punished him with such severity as to have [*659] cured him of his wickedness. The learned judge who tried the prisoner, after consulting his colleague and the principal counsel on the circuit, ruled this to be manslaughter only. Anon. 1 East, P. C. 261.

As to manslaughter committed by the captain and mate of a vessel on one of the crew, see Leggett's case, 8 C. and P. 191 (a).

Where death ensues in the case of sports or recreations, such recreations being innocent and allowable, it falls within the rule of excusable homicide, because bodily harm is not the motive on either side. Foster, 250; 1 East, P. C. 268. Therefore persons playing at cudgels, Comb. 408, or foils or wrestling, Lane's case, 1 East, P. C. 268, are excusable, if death ensue. Lord Hale appears to be of a different opinion. He says, regularly, he that voluntarily and knowingly intends hurt to the person of a man, though he intends not death, yet if death ensue, it excuses not from the guilt of murder or manslaughter at least, as if A. intends to

(a) Eng. Com. L. Rep. xxxiv. 348.

beat B., but not to kill him, yet if death ensue, this is not per infortunium, but murder or manslaughter, as the circumstances of the case happen; and therefore, he continues, I have known it ruled, that if two men are playing at cudgels together, or wrestling, by consent, if one by a blow or fall kills the other, it is manslaughter and not per infortunium, as Mr. Dalton, (cap. 90,) seems to doubt it; and accordingly it was, P. 2, Car. 2, by all the judges, upon a special verdict, from Newgate, where two friends were playing at foils at a fencing school, and one casually killed the other, resolved to be manslaughter. 1 Hale, P. C. 472.

The question in these cases appears to be twofold, 1st, whether the sport was lawful, and 2d, whether the parties engaged in it with a friendly mind, or with intent to do each other some bodily harm. The cases mentioned by Lord Hale seem to proceed upon the latter supposition, and on this ground they are distinguished by Mr. Justice Foster from the case of persons who in perfect friendship engage by mutual consent in recreations for the trial of skill or manhood, or for improvement in the use of arms. Foster, 259, 260. 1 East, P. C. 268.

But if there be dangerous weapons used in such sports, and there be any negligence in the use of them, and one of the parties be killed, such negligence may render the act manslaughter. Sir John Chichester, fencing with his servant, made a pass at him, which the servant parried off with a bedstaff. In the heat of the exercise the chape of the scabbard flew off, and the man was killed by the point of the sword. It was held that this was manslaughter, because, though the act which occasioned the death intended no harm, nor could it have done harm if the chape had not been struck off by the party killed, and though the parties were in sport, yet the act itself, the thrusting at the servant, was unlawful. Aleyn, 12; 1 Hale, P. C. 472. Mr. Justice Foster puts this decision on another ground, observing that the party did not use the degree of circumspection [*660 ] which common prudence would have suggested; *and therefore the fact so circumstanced might well amount to manslaughter. Foster, 260; 1 East, P. C. 269.

Death in the course of a friendly contest may also amount to manslaughter, if any undue advantage has been taken. Thus, if two persons are engaged to play at cudgels, and one of them makes a blow at the other likely to hurt, before he was upon his guard, and without warning, and death ensues, the want of due and friendly caution would make the act amount to manslaughter. 1 East, P. C. 269.

Though the weapons be of a dangerous nature, yet if they be not directed by the persons using them against each other, and so no danger to be reasonably apprehended, if death casually ensue, it is only misadventure. 1 East, P. C. 269. Therefore, if a person be shooting at game or buts, or other lawful object, and a bystander be casually killed, it is only misadventure. 1 Hale, P. C. 38, 39, 472; 1 East, P. C. 269.

But if the sport or recreation be unlawful, and death ensues in the course of it, it will be murder or manslaughter, according to the circumstances of the case. Thus, where a man playing at the diversion of cockthrowing at Shrove-tide, missed his aim, and a child looking on, received a blow from the staff, of which he died, Mr. Justice Foster, (who observes that this is a barbarous, unmanly custom, productive of great disorders, and dangerous to bye-standers,) ruled it to be manslaughter. Foster, 261. Prize-fights, public boxing-matches, and the like, exhibited for the sake

of lucre, are not lawful sports, for they serve no valuable purpose, but on the contrary encourage a spirit of idleness and debauchery. Foster, 260. In such case the intention of the parties is not innocent in itself, each being careless of what hurt may be given, provided the promised reward be obtained; and besides, such meetings have in their nature a strong tendency to a breach of the peace. Therefore in Ward's case, who was challenged to fight by his adversary, for a public trial of skill in boxing, and was also urged to engage by taunts; although the occasion was sudden, yet having killed his opponent, he was held guilty of manslaughter. 1 East, P. C. 270.

So persons present at a prize-fight encouraging it by their presence will, in case of death, be guilty of manslaughter. Upon an indictment for murder, charging the prisoner with being present aiding and abetting, it appeared that there had been a fight between the deceased and another person, at which a great number of persons were assembled, and that in the course of the fight the ring was broken in several times by the persons assembled, who had sticks, which they used with great violence. The deceased died in consequence of the blows he received on this occasion. There was contradictory evidence as to the prisoner having acted as second. In summing up, the judge (Mr. Justice Littledale) said "my attention has been called to the evidence that the prisoner did nothing; but I am of opinion that persons who are at a fight, in consequence of which death ensues, are all guilty of manslaughter, *if they encouraged [ *661 ] it by their presence: I mean if they remained present during the fight. If they were not merely casually passing by, but stayed at the place, they encouraged it by their presence, although they did not say or do anything. But if the death ensued by violence unconnected with the fight itself, that is by blows not given by the other combatant, but by persons breaking in the ring and striking with their sticks, those who were merely present are not, by being present, guilty of manslaughter. The case is at most one of manslaughter only. Murphy's case, 6 C. and P. 103 (a). It has been ruled, however, that persons present at a fatal prize-fight are not such accomplices as that their evidence requires confirmation. Hargrave's case, 4 C. and P. 170 (b).

Where death casually ensues in the course of a lawful employment, and there is a want of due caution on the part of the person from whom it proceeds, it will not be misadventure but manslaughter. A. having decr frequenting his corn-field out of the precinct of any forest or chase, set himself in the night-time to watch in a hedge, and B. his servant to watch in another corner of the field with a gun, charging him to shoot when he heard the deer rustle in the corn. The master himself improvidently rushed into the corn, when the servant, supposing it to be the deer, shot and killed his master. This was held to be only chance medley, for the servant was misguided by the master's own directions. But it seemed to Lord Hale, who tried the prisoner, that if the master had not given such directions, it would have been manslaughter to have shot a man, though mistaking him for a deer, because he did not use due diligence to discover his mark. 1 Hale, P. C. 476.

An ironfounder being employed by an oilman and dealer in marine stores to make some cannon, to be used on a day of rejoicing and after

(a) Eng. Com. L. Rep. xxv. 301. (b) Id. xxiv. 260.

wards to be put into a sailing boat, after one of them had burst, and had been returned to him in consequence, sent it back in so imperfect a state, that on being fired it burst again, and killed the deceased; on his trial before Bayley, B., Patteson, J., and Gurney, B., he was found guilty of manslaughter. Carr's case, 8 C. and P. 163 (a).

Proof of malice-death ensuing in the performance of a lawful act -persons administering medicines.] Cases of great difficulty and nicety have arisen with regard to the question of malice, where medicines have been carelessly or unskillfully administered by incompetent persons. The law on this subject is thus laid down by Lord Hale-"If a physician gives a person a potion without any intent of doing him any bodily hurt, but with intent to cure or prevent a disease, and, contrary to the expectation of the physician, it kills him, this is no homicide, and the like of a surgeon. And I hold their opinion to be erroneous that think, if it be no licensed surgeon or physician that occasions this mischance, then it is felony, for physic and salves were before licensed physicians and surgeons, and therefore, if they be not licensed according to the statutes, they are subject to the penalties in the statutes, but God forbid that any mischance [*662] *of this kind should make any person not licensed, guilty of murder or manslaughter" (1). 1 Hale, P. C. 429. Upon the latter point Sir William Blackstone appears to concur in opinion with Lord Hale. If a physician or surgeon, he says, gives his patient a potion or plaister to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure, and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance; but it has been held that if he be not a regular physician or surgeon who administers the medicine or performs the operation, it is manslaughter at the least. Yet Sir M. Hale very justly questions the law of this determination. 4 Bl. Com. c. 14. The correctness of Sir M. Hale's opinion has been recognized in several late cases. Thus in Van Butchell's case, 3 C. and P. 632 (b), Hullock, B., ruled that it made no difference whether the party was a regular or an irregular surgeon, adding that in remote parts of the country many persons would be left to die, if irregular surgeons were not allowed to practise. The same opinion was expressed by Park, J., in a subsequent case, in which he observed that whether the party was licensed or unlicensed is of no consequence except in this respect, that he may be subject to pecuniary penalties, for acting contrary to charters or acts of Parliament. Long's case, 6 C. and P. 398 (c).

But whether the party be licensed or unlicensed, if he display gross ignorance, or criminal inattention, or culpable rashness, in the treatment. of his patient, he is criminally responsible. There is no doubt, says Mr. Baron Hullock, that there may be cases where both regular and irregular surgeons may be liable to an indictment, as there may be cases where from the manner of the operation even malice might be inferred. Van Butchell's case, 3 C. and P. 633; 4 C. and P. 407 (d). Where a person who, though not educated as a surgeon, had been in the habit of acting as a man-midwife, and had unskillfully treated a woman in childbirth, in

(1) Commonwealth v. Thompson, 6 Mass. 134. S. C. 2 Wheeler's C. C. 312. (a) Eng. Com. L. Rep. xxxiv. 336. (b) Id. xiv. 495. (c) Id. xix. 440. (d) Id. 445.