The Laws of England, Compiled and translated into the Māori language.
A Chapter Containing Explanations of Some of the Criminal Offences
A Chapter Containing Explanations of Some of the Criminal Offences.
1. Abduction.—Unlawful taking away of a Girl. *
If any unmarried woman be taken or detained by any persons from motives of lucre, without her consent, and with an intention on the part of the taker to marry or to defile her; this also is a Criminal Offence, and is indictable in the Supreme Court. This applies only in cases where the woman is possessed of property, and the person taking her does so in order to obtain her property. In the case of a woman not possessed of property, who may be so taken, another course is adopted; the taker may be indicted for an "Assault." (See List of Criminal Offences, No. 9). Or the case may be treated as one of Civil Injury and compensation Sought in a Court of Law for the injury sustained in consequence of the wrongful act of the taker, which would be a "False Imprisonment." (See Civil Injuries.)
The definition of an Accessory is this: A person not present at the commission of a Felony, but concerned in such an offence, either before or after its commission.
A person present, aiding and abetting, would not be regarded as an Accessory, but as having himself committed a Felony, and would be indicted accordingly in the supreme Court.
One kind of Accessory to a Felony is where the person is concerned in it before its commission. As in the case of a person not present at the commission of a Felony by another, but Who procured, advised, commanded or assisted the person committing it. In the case of a Criminal Offence not amounting to Felony, a person concerned in it before its commission is considered as having himself committed such offence.
Another kind of Accessory to a Felony is where the person is concerned in it after its commission. As in the case of a person who knows of the commission of a Felony by another and receives, relieves, comforts of assists the felon, thus obstructing the course of the Law; whether such felon have himself committed the Felony as a principal, or have only been concerned in it before its commission, as an Accessory. Merely permitting a felon to escape would not make a person an Accessory. In the case of Criminal Offences not amounting to Felony there are no Accessories after the commission.
4. Accusing of Crime.
Let it be clearly understood that this offence does not consist in simply accusing or threatening to accuse another of committing a Criminal Offence, but there must be no probable ground for the accusation, or it must be made with a view to obtain money from the accused. If a person have probable reason to suppose that another has committed a Criminal Offence, he Must declare it to a Magistrate, and will not be wrong in so doing, but would be wrong in not declaring it. If he make the accusation, or threaten to do so, from improper motives, he will be wrong. If, on the contrary, the accusation be made with proper motives, the Law will not reprove the accuser.
A person so accused by another with proper motives, though the crime be not proved against him, will not be permitted to bring an action against his accuser. The Law protects those who endeavor to uphold and maintain it.
Persons committing this Offence, or an Assault, may be bound over to keep the Peace, instead of being committed to prison. (See List of Criminal Offences, "Surety of the Peace," 69.)
8. Arson.—Burning Houses, &c.
The act must be malicious and intentional to make it Arson. If done by mischance or thoughtlessly it will not be a Felony. The Law regards the intention of a person in any act.
If a house be accidentally set fire to by any person and burnt, the remedy must be sought by an action at Law for a Civil Injury. Thus, suppose a person should go out to shoot birds for sport and, by accident, fire from his gun should ignite the thatch of a house, and the house be burut; this would not be Felony.
But if a person, intending to commit a Felony, accidentally set fire to the house of another, and the house be burnt; this would be Arson. Thus, suppose a person were to go with the intention of burning the house of one man and should undesignedly set fire to the house of another; this would be Arson. Or thus, if a man should intentionally set fire to his own house, and the house of another is burnt in consequence, such house being either near to his, or so situated that if the one were burnt the other could not escape; this would be Arson.
The rule laid down by Moses for such cases was very similar, as it directed that the remedy should be by Civil process. "If fire break out, and catch in thorns, so that the stacks of corn, or the standing corn, or the field, be consumed therewith; he that kindleth the fire shall surely make restitution." Exodus 22. 6.
Any person who aids or counsels another in the commission of this offence, may be punished equally with the person who actually commits the offence.
To encourage a dog to bite any person is an Assault.
To ride over a person with a horse, or designedly to drive a cart against a person, thereby causing hurt, is an Assault.
To lay hands upon a girl in an indecent manner, the girl not consenting, is an Assault.
If two persons are fighting and one of them unintentionally strikes a third person, it is an Assault.
If a Constable, while engaged in suppressing or preventing a disturbance, be obstructed by a person standing in his way, he may apprehend such person.
If a person forcibly enter the dwelling of another, the owner may expel him. If the intruder entered quietly, the owner of the house must tell him to go out before he attempts forcibly to expel him. But it is always better, in the ease of a trespass, in the first place, quietly to desire the intruder to depart, or to desist, and not to begin by striking him, though unlawfully molesting his person or property. If the intruder will not desist, he may then quietly lay hands on him to thrust him away, but must not thrust him with violence, unless resistance be offered, in which case more force may be used. But it is much better, if possible, to have recourse to the Law.
Another mode of dealing with cases of Assault is by seeking compensation. (See Civil Injuries.)
The law of Moses said with reference to this, "Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift: for a gift doth blind the eyes of the wise, and pervert the words of the righteous." Deut. 16.19.
If a person challenge another to fight with him, or be the bearer of a challenge to another, it is a misdemeanor, although fighting may not follow. Or if one provoke another by a letter, or otherwise deliberately insult him, in order to excite him to passion, and thereby provoke a challenge, it is a misdemeanor. It will not exculpate the person committing this offence to show that he was first provoked by the other. This may perhaps apply to the Maori curse, which is an insult tending to excite anger and to provoke a challenge. The person uttering such a curse may be required to find sureties for his good behaviour, that is, persons to make a written promise to forfeit money to the Queen if he again offend.
There is one exception to the Law in reference to this offence, in the case of a thing stolen by a Maori. In this case the Resident Magistrate, may, if he think fit, allow the thief to pay into Court four times the value of the stolen articles, and he may then be discharged; such restitution being substituted for imprisonment.
In some cases of Misdemeanor whereby any person sustains injury, as in the case of Battery or of Libel, the defendant is permitted to speak with the prosecutor before the sentence of the Court has been pronounced. If they come to an amicable arrangement, and the prosecutor says he is satisfied, and has no wish to press the matter further, a slight punishment will be inflicted on the offender; such as, it may be, fining him a shilling.
The Law never allows any Officer engaged in its administration to receive money under color of his office, from private persons, for his own use.
The Queen receives all Court fees for the benefit of the public. The money is expended by the Government in defraying the expense of providing for the regular administration of the Law in accordance with established rules.
The Queen in the same manner receives all Fines. In some cases the Law directs that they shall be paid, by way of compensation, to the person injured by the act of the offender, or to the person informing or active in procuring his conviction. In some cases the Law prescribes such an appropriation of the fine; in others, it is left to the discretion of the Magistrate. In some cases the whole of the fine is so appropriated; in others, a part only.
The power which Magistrates now have of permitting this offence to be atoned for by a payment, when committed by a Maori, is not intended to be permanent. It is an indulgence allowed for the present, while the Maori people are ignorant. It is not permitted in he case of a Pakeha, who, if he steal, must be imprisoned: money cannot be received as an atonement for his offence; he himself must be the atonement. (See Explanatory note to Compounding, 23.)
The thing taken must pass into the possession of another to constitute the offence of Larceny. If taken by a man's wife it is not a Larceny, as the husband and wife are one; the former possesses that which is in the possession of the latter.
If a thing be taken by mistake, under the impression that it might be lawfully taken; or taken with an intention to return it to the owner; such taking would not be Larceny. But it the taking were Larceny, though the thing stolen were restored, the taking would still be Larceny.
If anything be snatched with violence from a man's person, or forcibly taken, it is Robbery. But in general a mere snatching anything from another, without any struggle or injury to the person, will not be accounted Robbery.
If intimidation be used to compel another to deliver anything belonging to him, and it be delivered and received, the taking is Robbery. If injury to the person accompany the act, the punishment will be augmented.
It is certain that the "Taua Maori" is contrary to Law, and that when goods are taken by a Taua, they are stolen, and the offence of Larceny is committed; the takers are guilty of Larceny, and the receivers are guilty of Receiving stolen goods. But goods taken upon the authority of a Magistrate's Warrant are lawfully taken, because the process is one appointed by the Law. The "Taua Maori" is not lawful; it is a Larceny, and a Criminal Offence. The officers of justice should do their best to suppress and put an end to this bad custom.
The Law respecting Homicide will be here explained.
There are three kinds of Homicide;—
|1.||—Homicide which the Law justifies.|
|2.||—Homicide which the Law excuses.|
|3.||—Homicide which is felonious; that is, Homicide which can neither be justified, nor excused from punishment.|
1. Homicide which the Law justifies is this. When a person deprives another of life, without desiring to do so, without misadventure, and without negligence. Thus: a convicted Criminal is sentenced by the Judge to be put to death, and is accordingly put to death by the Sheriff: this is a lawful taking of life, and the person who thus takes life, that is, the Sheriff, is justified in so doing. It is not of desire, nor by misadventure, nor through negligence, on his part, that life is so taken by him. Nor is it his own act, but that of the Law, of which he is but the servant. He is therefore justified when he thus takes human life. But this can be done by the Sheriff only, who has been appointed for the special duty. (See Introduction, § 30 "Sheriff.")
If any person, other than the Sheriff, put another to death, though the person so put to death be guilty of a crime deserving the punishment of death, the act will be Murder, because done without authority.
There are other cases where homicide may be justified. Thus: when an Officer of Justice is assaulted or resisted in the discharge of his office, and kills the person so assaulting or resisting him. When an Officer endeavouring to apprehend a person charged with a Felony is resisted by him, and in the attempt to capture, kills him. Or when an Officer in charge of prisoners, either in prison. or while being conveyed thither, is attacked by them, and some of them are killed by him in the endeavour to prevent their escape. But Homicide, in all these cases, can only be justified when such Officer can by no other means effect his object. Thus, there must be no other possible way by which the criminal could be apprehended; no other means by which the Officer in charge of the prisoners might detain them: in such case only will the Homicide be justified.
Another kind of Homicide which the Law justifies, is in such case as this. A person kills another in the attempt to prevent the forcible commission by him of some atrocious crime. This would be justified by the Law. Thus if a man were to attempt to rob or murder another; or to break open a house in the night; or to set it on fire; and be killed in the attempt by a person seeking to prevent the execution of his purpose; the Slayer will be exonerated by the Law.
This will not apply where the attempt to commit crime is not accompanied with force; such as a case of common stealing, or of breaking into a house in the day time, unless accompanied by an attempt to rob.
Another case of Homicide which the Law justifies is this. If a man attempts to ravish a woman, and is killed by her, the woman will be justified by the Law. Or if a man attempt to ravish a woman, and be killed by the husband or father of the woman; homicide in such a case is justifiable. It is otherwise, if the husband or father take them in adultery the woman consenting; in such case homicide would not be justifiable. In the former case, the woman is forcibly defiled, and the offence is a Felony; but not so in the latter, This distinction should be carefully borne in mind; lest a mistake should be made, by straining this doctrine to meet cases which it does not reach: as it is inapplicable to those cases of crime which are not attempted with violence.
2. Homicide which the Law excuses is:—when it is committed by accident; or, when it is committed for self-preservation. By accident—as when a man, quietly engaged in a lawful act, without any ill intention, causes the death of another. As when a man is at work with an axe, cutting wood, and in wielding the axe the head flies off, and strikes a bystander, causing his death. Or as when a man goes out to shoot birds, and accidentally kills another. Or as when the horse on which a person is riding, is whipped by another person, and it runs page 35away and knocks down and tramples upon a child, causing its death; the rider will not be guilty of an offence, for he did nothing wrong. But the person who whipped the horse will be guilty of Manslaughter. And it is also a general rule that when a man meets with his death in consequence of the idle sport of another, the Slayer will be held to have committed Manslaughter. As, if a person should throw stones in a town or other public place, and one he struck and killed; the person who threw the stone will have committed the offence of Manslaughter, and his act will not be regarded as an accident.
Another case of Homicide which the Law excuses is this:—When a man wards off the blow of another aimed with intent to kill him, and in so doing deprives his assailant of life. This is called Self Defence. But a man may not attack another for injuries past or about to be inflicted on him by his adversary. Only while the attack continues, the assailed may defend himself, and if in so doing he kill bis assailant, the Law will excuse him. If, however, he attack his adversary, he will be wrong, for the Law is his proper resource, if he have suffered, or is about to suffer wrong, at the hands of another. Wherefore the right of Self Defenee should be exercised only in cases of sudden and unforeseen violence offered by another; when serious injury to the person would be the consequence of waiting for the interposition of the Law. For this reason it has been provided that the plea of Self Defence is admitted by the Law as an excuse for Homicide, only when it is shown that the killer had no means of escape, or of avoiding the stroke of bis assailant. Care must also be taken not to employ too great force in Self Defence, lest it partake of the character of an attack on the part of the person defending himself, and he become an aggressor upon the other.
The plea of Self Defence, as rendering Homicide excusable by the Law, will hoki good in the case of a person killing another in the defence of the life of bis wife, of his child, or of his parent, from an attack by another.
3. Homicide which is felonious, is a totally different thing from the kinds of Homicide before spoken of. It is the killing of a human being altogether without legal ground of justification or excuse.
A man killing himself commits this offence.
A man killing another commits this offence; and the killing of another is divided into Manslaughter and Murder.
Manslaughter is the unlawful killing of another without malice expressed or implied,—that is, shown outwardly, or existing within. It is sometimes voluntary and sometimes involuntary. Involuntary Manslaughter is, when a man engaged in any unlawful act, not felonious, or tending to bloodshed, kills another undesignedly. Another case is, when a man engaged in a lawful act does not take proper care, and kills another undesignedly. But if the act be felonious, the offence will be Murder.
If two persons quarrel, and afterwards fight, and one be killed, it will be Manslaughter, if the interval between the quarrel and the fight had not been sufficient for passion to subside; but if there had been an interval, or it appear that malice incited the deed, it is Murder. It is immaterial which of the parties struck the first blow.
And even in a case when there is no interval between the quarrel and the fight, for passion to cool; but indications of malice and murderous intention on the part of the killer are manifest; it is Murder.
If two persons quarrel and fight, and one of them provide himself with a knife, or other deadly weapon, and wait for his opponent, and they meet again and quarrel and fight, and the one armed with the knife kill the other; this is Murder.
If a person upon grievous provocation, under the influence of passion, suddenly strike the person offering the provocation, and death ensue; this will not be Murder, but Man page 36slaughter. But the provocation must be very grievous; for if it consist in mere words, however opprobrious, this will not furnish ground for reducing the offence to Manslaughter, where an intention to kill appears; such as, where the victim is killed with a knife or other deadly weapon. But if the instrument, with which the fatal blow was given, be not a deadly weapon; this will from a ground for reducing the offence to Manslaughter. It is for the Jury carefully to weigh and consider the nature and degree of the provocation and the circumstances connected with the case. If an Officer of Justice be killed while in the regular execution of his office, the killer knowing him to be such Officer, and intending to obstruct him in the performance of his duty; it is Murder. Those also who aid the killer are guilty of the same offence. And the case is the same when private persons lawfully interfere in affrays, or to prevent the commission of felonies; if they expressly declare their intention of so interfering to quell a disturbance or prevent a crime.
This is the unlawful killing of another with malice aforethought. There are two meanings included in the expression "malice aforethought." One—when the malice is outwardly expressed. Another—when it is latent within, implied. It is so expressed, when malice on the part of the slayer to the individual slain is evident. It is implied, when malice is assumed from the act itself; as when a gun is fired at a number of persons, and one of them is killed; or when a person on slight provocation kills another; or when a person kills an Officer of Justice while engaged in the execution of his office; or when a person, intending the commission of another felony, contrary to his intention and undesignedly, kills another.
Most cases of Homicide are malicious, and amount to Murder. Those cases must be excepted which have been specified above, and which do not amount to Murder, viz.:—Cases of Homicide which the Law justifies; cases which the Law excuses; and cases of Manslaughter.
The accused must show clearly to the Court and to the Jury all the circumstances of the case,—that is, all the evidence which may tend to justify a verdict of justifiable or excusable Homicide, or Manslaughter. It is for the accused to take care that all such evidence is produced and clearly set before the Court. It is the province of the Jury to look at the evidence, and decide whether it be true or false. The province of the Court is to decide how far that evidence reduces the magnitude of the offence; for the Law presumes all Homicide to be Murder, or to be malicious, until evidence is adduced to show why it should be regarded as less than Murder.
In the Law of Moses the distinction was very clearly drawn between Murder and Manslaughter on the one hand, and Homicide which the Law excuses, oh the other.
"He that smiteth a man, so that he die, shall surely be put to death." Exodus 21.12.
"But if he thrust him of hatred, or hurl at him by laying of wait that he die; or in enmity smite him with his hand, that he die; he that smote him shall surely be put to death; for he is a murderer." Numbers 35. 20, 21.
This is murder.
"But if he thrust him suddenly without enmity, or have cast upon him anything without laying of wait, or with any stone, wherewith a man may die, seeing him not, and cast it upon him, that he die, and was not his enemy, neither sought his harm: then the congregation shall judge between the slayer and the revenger of blood according to their judgments. And the congregation shall deliver the slayer out of the hand of the revenger of blood." Numbers 35. 22–25.
This is not Murder.
Again—"Whoso killeth his neighbour ignorantly, whom he hated not in time past, as when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour, that he die; he shall flee unto one of those cities and five: lest the avenger of blood pursue the slayer, while his heart is hot, and overtake him, because the way is long, and slay him; whereas he was not worthy of death, inasmuch as he hated him not in time past." Deuteronomy page 37 19. 4, 6. "But if any man hate his neighbour; and lie in wait for him, and rise up against him, and smite him mortally that he die, and fleeth into one of these cities: then the elders of his city shall send and fetch him thence, and deliver him into the him of the avenger of blood, that he may die. Thine eye shall not pity him, but thou shall put away the guilt of innocent blood from Israel, that it may go well with thee." Deuteronomy 19. 11–13.
Let not these words be forgotten by any one:
"He was not worthy of death; inasmuch as he hated him not in time past."
Formerly, the punishment inflicted on a person guilty of some of the Crimes enumerated in the List of Criminal Offences was transportation of the offender to some other land. Lately, the Law has been altered in this respect; transportation of criminals has been discontinued, and imprisonment substituted; with the addition of hard labor, and other aggravations. Had it been wished to state the exact punishment assigned to each offence, it would have been necessary to state precisely, which were punished by imprisonment only; which by imprisonment with hard labor; and which by imprisonment with other additions to make the punishment equal to transportation, which has been discontinued. It was thought, however, that this might cause confusion, and that it would be better to include all under the general head of "Imprisonment."
There are other provisions of the Law appointing punishments for the commission of Offences, and for the neglect of duties. These however, do not at present apply to the Maori people, and therefore have not been stated here. It is not said that all Criminal Offences are here set down. Those principal ones have been described, with their punishments, a knowledge of which it has been thought necessary that the Maori people should possess, in order that they may grow up with a proper respect and regard for the law. Those are omitted which are not of frequent occurrence, and those only are given with which it is thought the Maori people ought now to be made acquainted.
[The List of Criminal Offences having been arranged in English alphabetical order, an English Index is not required.]
* Note.—These numbers correspond with the numbers in the preceding List of Criminal Offences.