and well grounded from the circumstances by which the deceased was surrounded; not that the jury must be satisfied that there was no other way of escape, but that it was such a step as a reasonable man might take.(c)

Upon the same principles, where there is found to be actual malice, or a wilful disposition to injure another, or an obstinate perseverance in doing an act necessarily attended with danger, without regard to the consequences, as if a master by premeditated negligence, or harsh usage, cause the death of his apprentice, it will be murder. Thus, where the prisoner. upon his apprentice returning to him from Bridewell, whither he had been sent for misbehavior, in a lousy and distempered condition, did not take that care of him which his situation required, and which he might have done; not having suffered him to lie in a bed on account of the vermin, but having made him lie on the boards for some time without covering, and without common medical care; and the death of the apprentice, in the opinion of the medical witnesses, was most probably occasioned by his ill-treatment in Bridewell, and the want of care when he went home; and they inclined to think that, if he had been properly treated when he came home, he might have recovered; the Court, under these circumstances, and others in favor of the prisoner, left it to the jury to consider, whether the death of the apprentice was occasioned by the ill-treatment he received from his master after returning from Bridewell, and whether that ill-treatment amounted to evidence of malice; in which case they were to find him guilty of murder.(d) The prisoner Charles Squire, and his wife, were indicted for the murder of a boy who was bound as a parish apprentice to the prisoner Charles; and it appeared that both the prisoners had used the apprentice in a most cruel and barbarous manner, and had not provided him with sufficient food and nourishment: but the surgeon who opened the body deposed that in his judgment the boy died from debility, and for want of proper food and nourishment, and not from the wounds, &c., which he had received. Lawrence, J., was of opinion that the case was defective as to the *678] wife, as it was not her duty to provide the apprentice with *sufficient food and nourishment, she being the servant of her husband, and so directed the jury, who acquitted her; but the husband was found guilty and executed.(e)1

The law is undisputed that if a person, having the care and custody of another who is helpless, neglects to supply him with the necessaries of life, and thereby causes or accelerates his death, it is a criminal offence. But the law is also clear that if a person, having the exercise of freewill, chooses to stay in a service where bad food and lodging are provided, and death is thereby caused, the master is not criminally liable. Per Erle, C. J. Where, therefore, a servant maid of very weak intellect was kept on very insufficient food, and slept in a damp room, and died in

(c) Reg. v. Pitts, C. & Mars. 284 (41 E. C. L. R.).

(d) Self's case, 1 East P. C. c. 5, s. 13, p. 226, 7; 1 Leach 137; and see the case more fully stated in the chapter on Manslaughter.

(e) Rex v. Squire and his wife, Stafford Lent Assizes, 1799, MS. and as to the principles upon which the wife was acquitted, see the case more fully stated, ante, p. 38. After the surgeon had deposed that the boy died from debility, and for want of proper food and nourishment, and not from the wounds, &c., which he had received, the learned judge was proceeding to inquire of him whether, in his judgment, the series of cruel usage the boy had received, and in which the wife had been as active as her husband, might not have so far broken his constitution as to promote the debility, and co-operate along with the want of proper food and nourishment to bring on his death, when the surgeon was seized with a fainting fit, and, being taken out of court, did not recover sufficiently to attend again upon the trial. The judge, after observing that, upon the evidence, as it then stood, he could not leave it to the jury to consider, whether the wounds, &c., inflicted on the boy, had contributed to cause his death, said, that if any physician or surgeon were present who had heard the trial, he might be examined as to the point intended to be inquired into; but no such person being present, he delivered his opinion to the jury, as stated in the text.

If a seaman is in a state of great debility and exhaustion, so that he cannot go aloft without danger of death or enormous bodily injury, and the facts are known to the master, who, notwithstanding, compels him, by moral or physical force, to go aloft, and the seaman falls from the mast and is drowned thereby, and his death is caused by such miscon duct of the master; it is murder in the master if he was malicious-if he had no malice, it is manslaughter: United States v. Freeman, 4 Mason 505.

consequence thereof; but it appeared that she was not confined to the house, and might have left it if she chose; it was held that the mistress was not guilty of manslaughter.(ee) The facts of this case are voluminous, and would clearly have supported an indictment on the 24 & 25 Vict. c. 100, s. 26, p. 1015 of Vol. I. But that clause was not adverted to in the case; and yet it seems very well worthy of consideration whether, where death results from the commission of an offence within that section, the case is not one of manslaughter. See Vol. I. p. 851. It is difficult also to see how the servant's remaining can affect the legal quality of the prisoner's acts, and render those acts which are an indictable offence innocent as regards the death. The utmost effect that can reasonably be given to the servant's remaining is to make her a partaker in causing her own death; but that is clearly no defence to the mistress. Suppose the death had been from beating, the case would clearly have been manslaughter, and yet the servant might have gone away and avoided the beating.

A master is not bound by the common law to find medical advice for a servant, but a master is bound during the illness of an apprentice to provide him with proper medicines; if he neglect so to do he is criminally responsible. The prisoner was indicted for the manslaughter of his apprentice by neglecting to provide him sufficient meat and drink, &c. The deceased was bound to the prisoner by indenture, by which he covenanted to find him clothes and victuals; his death was produced, according to the evidence of some medical men, by uncleanliness and want of food; Patteson, J., told the jury that "by the general law the master was not bound to provide medical advice for his servant;(f) yet that the case was different with respect to an apprentice, and that a master is bound during the illness of his apprentice to provide him with proper medicines; and that if they thought that the death of the deceased was occasioned, not by the want of food, &c., but by want of medicines, then, in the absence of any charge to that effect in the indictment, the prisoner would be entitled to be acquitted."(g) Where a master has treated a person, bound to him by an invalid indenture of apprenticeship, as his servant, and such person dies through the neglect of the master to provide him with food, the master cannot defend himself against an indictment for manslaughter on the ground that he was not legally bound to provide such person with food. An indictment for manslaughter in one count alleged that the deceased was the apprentice of the prisoner, and that it was his duty to provide sufficient food for her as such apprentice, and that he neglected to do so, &c., by means of which she died; in another count it alleged that the deceased was the servant of the prisoner, and that it was his duty to provide her with food, &c. An invalid indenture of apprenticeship was put in, and it appeared that the deceased had always been treated as an apprentice by the prisoner, and had performed such duties as an apprentice would have performed, but the prisoner being a farmer these duties were the same as those performed by ordinary farmers' servants: it was objected that the first count was not proved, as the indenture was invalid; and that the relation of master and servant never existed, for an invalid contract of apprenticeship could not be converted into a hiring [*679 and service: *that the foundation of this indictment was that the prisoner was legally bound to provide maintenance for the deceased, and here it was clear he could neither have been compelled to support her as an apprentice or as a servant; but it was held, that the prisoner having treated the deceased as his servant, could not turn round and say she was not his servant at all. (h) Where the first count

(ee) Reg. v. Smith, 12 Law T. 608.

(f) See Sellen v. Norman, 4 C. & P. 80 (19 E. C. L. R.).

(g) Reg. v. Smith, 8 C. & P. 135 (38 E. C. L. R.).

(h) Rex v. Davies, Hereford Sum. Ass. 1831, Patteson, J., MS. C. S. G. In support of this decision it may be observed, that although a son could not be punished for the murder of his father as for petit treason, under the 25 Edw. 3, st. 5, c. 2, unless by a reasonable construction he came under the word servant. Yet if he were bound apprentice to his father or mother, or was maintained by them, or did any necessary service for them, though he did not receive wages, he might have been indicted by the description of servant: 1 Hawk. P. C. c. 32, s. 2; 1 East P. C. c. 5, s. 99, p. 336; and a near relation, as a sister, might be a servant within the statute, if she acted as such: Rex v. Edwards, Stafford Ass. MS., coram Lawrence, J. C. S. G.

stated that the deceased was the apprentice of the prisoner, and it was his duty to provide the deceased with proper and necessary nourishment, medicine, medical care and attention, and charged the death to be from neglect, &c.; and the second count charged that the deceased " so being such apprentice as aforesaid," was killed by the prisoner by over-work and beating; and the only evidence given to show that the deceased was an apprentice was, that the prisoner had stated that he was his apprentice; Patteson, J., held, that there was sufficient evidence to support the second count, but not the first. (i)

Where the mother of a bastard child marries after the passing of the 4 & 5 Will. 4. c. 76, the new Poor Law Act, and such child afterwards dies (after it has been weaned)(k) through neglect to provide it with sufficient food, the omission to provide food is the omission of the husband, and in order to render the wife criminally responsible it must be shown that the husband supplied her with food to give to the child, and that she wilfully neglected to give it. The prisoner, who was the wife of J. S., was charged with the murder of her illegitimate child, aged three years, by omitting to give it proper food. The prisoner had in December, 1834, married J. S.; the deceased was her illegitimate child, and was born before her marriage; in the judgment of medical witnesses the death had proceeded from the want of proper food. For the prosecution Rex v. Squire,(1) and the 4 & 5 Will. 4, c. 76, s. 71, were referred to; and it was submitted that the mother of an illegitimate child was bound to take care of her child, and might be guilty of murder if its death arose from neglect. Alderson, B.: "The prisoner is indicted as a married woman: if her husband supplied her with food for this child, and she wilfully neglected to give it to the child, and thereby caused its death, it might be murder in her.(m) In these cases the wife is in the nature of the servant of the husband: it does not at all turn upon the natural relation of the mother to charge her you must show that the husband supplied her with food to give to the child, and that she wilfully neglected to give it. There is no distinction between the case of an apprentice and that of a bastard child, and the wife *is only the servant of the husband, and, accord

*680] ing to the case before Mr. Justice Lawrence, (n) can only be made criminally responsible by omitting to deliver the food to the child, with which she had been supplied by her husband. The omission to provide food is the omission of the husband, and the crime of the wife can only be the omitting to deliver the food to the child after the husband has provided it."(0)

(i) Reg. v. Crumpton, Car. & Mars. 597 (41 E. C. L. R.).

(k) See Reg. v. Edwards, post, p. 684.

(1) Supra, note (e).

(m) This position was thought too wide in Reg. v. Bubb, infra, by Williams, J., and the Editor, as it is not limited to cases where death or serious bodily injury is contemplated.

(n) Supra, note (e).

66

(o) Rex v. Saunders, 7 C. & P. 277 (32 E. C. L. R.). This case was decided on the opening of counsel, and it did not appear whether the wife was living with her husband, or whether he was capable of maintaining the child. By the 4 & 5 Will. 4, c. 76, s. 71, the mother of every child born a bastard after the passing of the Act, "so long as she shall be unmarried or a widow, shall be bound to maintain such child as a part of her family, until such child shall attain the age of sixteen." By sec. 57, every man who, after the passing of the Act, marries a woman having a child or children, either legitimate or illegitimate, shall be liable to maintain such child or children as a part of his family" until sixteen, or until the death of the mother. In Laing v. Spicer, Tyrw. & Gr. 358, I M. & W. 129, it was held that the putative father of a bastard, on whom an order of maintenance had been made, under the 18 Eliz. c. 2, s. 2, and 49 Geo. 3, c. 68, before the passing of the 4 & 5 Will. 4, was no longer liable under such order, where the mother since the passing of that Act had married a person capable of supporting the child; and the Court seemed to think that the putative father would not be liable, even if the busband were incapable of supporting the child. It seems to follow, from this decision, and from the words of sec. 71, that the liability of the mother of a bastard under that Act wholly ceases upon her marriage; and it is presumed that it was upon this ground that Reg. v. Saunders was decided. No notice was taken in that case of any common-law liability to support a bastard. In 1 Blac. Com. 457, it is said, "the duty of parents to their bastard children by our law is principally that of maintenance; for though bastards are not looked upon to any civil purposes, yet the ties of nature, of which maintenance is one, are not so easily dissolved; and they hold, indeed, as to many other intentious; as

An indictment for murder alleged that M. Hook, an infant of tender age, [*681 was a daughter of R. Hook, and was living with R. *Hook and Elizabeth Bubb, and under their care and control, and unable to provide for or take care of herself, and that it was the duty of the prisoners to provide for and administer to M. Hook sufficient food for the support of her body, and that the prisoners feloniously, &c., did refuse and neglect to give and administer to M. Hook sufficient food for the support of her body; whereby she became mortally sick and died.(p) The case against Bubb was, that she was the sister of Hook's deceased wife, and on her death had gone to live with Hook, and became the manager of his household. He was absent from home except from Saturday night until Monday morning, but always provided ample food for the whole family. Hook's children were healthy till Bubb undertook their management, but she systematically neglected them, especially the deceased, and, notwithstanding the remonstances of the neighbors, persisted in withholding sufficient food, for want of which the child gradually wasted away, and died of actual starvation. Williams, J., told the jury that "the indictment alleges, first, a duty on the part of the prisoner to supply the necessaries of life to the child; it alleges, secondly, a malicious neglect or omission to perform that duty; and it alleges, thirdly, that the omission or neglect caused the death of the child. Now, first, with respect to the proposition that it was the duty of the prisoner to provide food necessary to sustain the life of the child It is quite clear that the circumstance of the prisoner being aunt of the child, or being resident in the same house with the child, was not sufficient to cast upon her the duty of pro

particularly that a man shall not marry his bastard sister or daughter" (citing Hains v. Jeffell, 1 Lord Raym. 68; Comb. 356). And this is in accrdancs with Puffendorf, book 4, c. 11, s. 6, who says, "maintenance is due not to legitimate children alone, but to natural and even to incestuous issue." In Nichole v. Allen, 3 C. & P. 36 (14 E. C. L. R.), Lord Tenterden, C. J., held that there was not only a moral but a legal obligation on a putative father to maintain his bastard child; and though this case seems to be overruled by Mortimore v. Wright, 6 M. & W. 482, as to there being no necessity for a promise on the part of the father to pay for the maintenance of the child; this point seems not to have been questioned. It seems, therefore, that there is this distinction between an apprentice and the bastard of the wife, that there is neither a moral nor a legal obligation on the wife to maintain an apprentice, but there certainly is a moral, and it should seem a legal obligation to support a bastard. In a note to Rex v. Saunders, the reporters observe, "an Act of Parliament (18 Eliz. c. 3, s. 2) would hardly have been required to fix the mother with the payment of a weekly sum, if at common law she is liable for the entire maintenance of the child." This observation might have been entitled to weight, if there had not been similar provisions to compel the maintenance of legitimate children. These statutes were probably introduced for the purpose of giving a ready means of enforcing a legal obligation by compelling the payment of a sufficient sum to indemnify the parish while the children were supported by it. With regard to legitimate children, it is the duty of their parents, by the common law, to provide for their maintenance: 1 Blac. Com. 446; see Puff. L. of N., book 4, c. 11, s. 4. This duty may be enforced, in the case of poor children, by the 43 Eliz. c. 2, s. 6, as well on the father as on the mother, being of sufficient ability. By the 5 Geo. 1, c. 8, if either father or mother leave their children a charge upon a parish, the goods of the father or mother may be seized and sold, and the rents of their lands received in discharge of the parish. And by the 5 Geo. 4, c. 83, s. 3, every person able, wholly or in part, to maintain himself, herself, or his or her family, by work or by other means, and wilfully refusing or neglecting so to do, whereby any of his or her family becomes chargeable, is to be deemed an idle and disorderly person, and punished accordingly. It should seem that there may be cases where a wife may be liable to maintain her children during her husband's lifetime, as where the husband has deserted her, or she has a separate maintenance (see Christian's note to 1 Blac. Com. 448), and it may be worthy of consideration whether where the husband is incapable of work, but she is capable of maintaining her children, she is not legally bound so to do; and as the overseers of every parish are bound by law to provide necessary support in cases of emergency, it may well be doubted whether cases may not occur where the wife would be legally bound to apply for relief to the parish officers. Suppose a husband were ill in bed, but the wife well, and the children starving for want of food, could it be fairly contended that she was under no legal obligation to apply for relief for them, and that if one of them died for want of food, she was not criminally responsible? See Umston v. Newcomen, 4 A. & E. 899 (31 E. C. L. R.), and Reg. v. Mabbett, infra, p. 683. C. S. G.

(p) The grand jury returned a bill for murder against E. Bubb, and for manslaughter against R. Hook, and a bill for manslaughter in the same form, mutatis mutandis, as the bill for murder was then preferred against the latter, and Bubb tried first.

VOL. I.-35

viding food for it. But if the prisoner undertook the charge of attending to the child, and of taking that care of it which its tender age required, a duty then arose to perform those duties properly; and if the prisoner, being in the capacity, as it were, of a servant or nurse, and having the charge of attending and taking care of the child, was furnished with the means of doing so properly, then the duty arose, which is charged in this indictment, of giving it sufficient food, and if the prisoner neglected to perform that duty, beyond all question she is criminally responsible. It remains for me to explain to what extent she is responsible. If the omission or neglect to perform the duty was malicious, then the indictment would be supported, and the crime of murder would be made out against the prisoner; but if the omission or neglect were simply culpable, but not arising from a malicious motive on the part of the prisoner, then it would be your duty to find her guilty of manslaughter only. And here it becomes necessary to explain what is meant by the expression malicious, which is thus used. If the omission to supply necessary food was accom

panied with an intention *to cause the death of the child, or to cause some *682] serious bodily harm to it, then it would be malicious in the sense imputed to it by this indictment, and in a case of this kind it is difficult, if not impossible, to understand how a person who contemplated doing serious bodily injury to the child by the deprivation of food, could have meditated anything else than causing its death. You will, therefore, probably consider that the question resolves itself into this: did the prisoner contemplate, by the course she pursued, the death of the child? If she did, and death was caused by the course she pursued, then she is guilty of murder. But if you are not satisfied that she contemplated the death of the child, then, although guilty of a culpable neglect of duty, it would amount only to the crime of manslaughter. If, on the other hand, you should think either that she did not undertake the duty of supplying the child with proper food, or that she did not culpably neglect that duty, then you will acquit her."(q).

On the trial of Hook for the manslaughter of the same child, in addition to the facts proved on the trial of Bubb, it was proved that when he was at home she treated the children better than on other occasions; and that he had uniformly behaved kindly to them, and especially to the deceased. Williams, J., told the jury that "this case differs from the last in this very essential particular, that here there is a duty directly cast upon the prisoner to provide sufficient food for the child if he has sufficient means for doing so, and inasmuch as it is proved that the prisoner had such means, there can be no doubt but that the law threw upon him the duty of preserving the child's life by providing it with proper food. But the peculiarity of the case is this, that inasmuch as we must take it that Bubb was guilty, she could not have been so, unless the prisoner had provided her with sufficient means for feeding the child, and it must be taken as an admitted fact in this case that the prisoner did take such steps as, but for Bubb's misconduct, would have preserved the child's life. Then the question is, how is the charge shaped against the prisoner? If Bubb neglected her duty by depriving the child of food for any purpose, and the prisoner was conscious of it, and nevertheless chose to let her persevere in that course, he thus became himself an instrument, as it were, of depriving the child of sufficient food, and he would be guilty upon this indictment. If, therefore, you think he was conscious that Bubb deprived the child of food to such an extent as to render it dangerous to the child's life, and, being so conscious, instead of preventing her from continuing in this course, he allowed her to do so, and was culpably negligent of the obvious duty cast upon him, then he is guilty of manslaughter, because then substantially he would have neglected to provide the child with proper food." (r)

Where parent, child, and servant reside in the same house, the duty of the parent is to provide food for the child, and the duty of the servant is to supply the food

(9) Reg. v. Bubb, 4 Cox C. C. 455. The indictment also alleged the duty to provide clothing and the neglect thereof; but as the child is alleged to have died of "actual starvation," all relating to the clothing has been omitted. This and the next case underwent the most careful consideration, and the law on the subject was fully discussed between Williams, J., Lord Campbell, C. J., and the Editor, on a review of the previous cases. (r) Reg. v. Hook, 4 Cox C. C. 455.