CHAPTER

THE

FOURTEENTH.

OF HOMICIDE.

IN

N the ten preceding chapters we have confidered, first, such crimes and mifdemefnors as are more immediately injurious to God and his holy religion; secondly, such as violate or tranfgrefs the law of nations; thirdly, such as more especially affect the king, the father and representative of his people; fourthly, such as more directly infringe the rights of the public or commonwealth, taken in it's collective capacity; and are now, laftly, to take into confideration those which in a more peculiar manner affect and injure individuals or private fubjects.

WERE these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall abfolutely under the notion of private wrongs; for which a satisfaction would be due only to the party injured: the manner of obtaining which was the subject of our enquiries in the preceding volume. But the wrongs, which we are now to treat of, are of a much more extenfive confequence; 1. Because it is impoffible they can be committed without a violation of the laws of nature; of the moral as well as political rules of right: 2. Because they include in them almost always a breach of the public peace: 3. Because by their example and evil tendency they threaten and endanger the fubverfion of all civil fo

ciety. Upon these accounts it is, that, befides the private fatisfaction due and given in many cafes to the individual, by action for the private wrong, the government alfo calls upon the offender to fubmit to public punishment for the public crime. And the prosecution of these offences is always at the fuit and in the name of the king, in whom by the texture of our conftitution the jus gladii, or executory power of the law, entirely refides. Thus too, in the old Gothic conftitution, there was a threefold punishment inflicted on all delinquents: firft, for the private wrong to the party injured; fecondly, for the offence against the king by difobedience to the laws; and thirdly, for the crime against the public by their evil example. Of which we may trace the groundwork, in what Tacitus tells us of his Germans; that, whenever offenders were fined, "pars multae regi, vel civitati, pars ipfi qui vindicatur vel propinquis ejus, exfolvitur.”

THESE crimes and mifdemefnors against private fubjects are principally of three kinds; against their perfons, their habitations, and their property.

OF crimes injurious to the perfons of private fubjects, the most principal and important is the offence of taking away that life, which is the immediate gift of the great creator; and which therefore no man can be entitled to deprive himself or another of, but in some manner either expreffly commanded in, or evidently deducible from, thofe laws which the creator has given us; the divine laws, I mean, of either nature or revelation. The fubject therefore of the prefent chapter will be, the offence of homicide or destroying the life of man, in it's several ftages of guilt, arifing from the particular circumftances of mitigation or aggravation which attend it.

Now homicide, or the killing of any human creature, is of three kinds; juftifiable, excufable, and felonious. The firft has no fhare of guilt at all; the fecond very little; but the third is a Stiernhook. 7. 1. c. 5. VOL. IV.

b de mor. Germ. c. 12.

Y

the

the highest crime against the law of nature, that man is capable of committing.

I. JUSTIFIABLE homicide is of divers kinds.

1. SUCH as is owing to fome unavoidable neceffity, without any will, intention, or defire, and without any inadvertence of negligence, in the party killing, and therefore without any shadow of blame. As, for inftance, by virtue of such an office as obliges one, in the execution of public justice, to put a malefactor to death, who hath forfeited his life by the laws and verdict of his country. This is an act of neceffity, and even of civil duty; and therefore not only justifiable, but commendable, where the law requires it. But the law must require it, otherwise it is not justifiable: therefore wantonly to kill the greatest of malefactors, a felon or a traitor, attainted or outlawed, deliberately, uncompelled, and extrajudicially, is murder. For as Bracton d very justly observes, “iftud homicidium fi fit ex livore, "vel delectatione effundendi humanum fanguinem, licet jufte occidatur ifte, tamen occifor peccat mortaliter, propter intentionem corrup"tam." And farther, if judgment of death be given by a judge not authorized by lawful commiffion, and execution is done accordingly, the judge is guilty of murder. And upon this account fir Matthew Hale himself, though he accepted the place of a judge of the common pleas under Cromwell's government (fince it is neceffary to decide the difputes of civil property in the worst of times) yet declined to fit on the crown fide at the affifes, and try prifoners; having very strong objections to the legality of the ufurper's commiffion': a distinction perhaps rather too refined; fince the punishment of crimes is at least as necessary to fociety, as maintaining the boundaries of property. Also fuch judgment, when legal, must be executed by the proper officer, or his appointed deputy; for no one else is required by law to do it, which requifition it is, that justifies

the homicide. If another person doth it of his own head, it is held to be murder: even though it be the judge himself. It must farther be executed, fervato juris ordine; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice verfa, it is murder: for he is merely minifterial, and therefore only juftified when he acts under the authority and compulfion of the law; but, if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commiffion of homicide: and, befides, this licence might occafion a very grofs abuse of his power. The king indeed may remit part of a sentence; as, in the cafe of treafon, all but the beheading: but this is no change, no introduction of a new punishment; and in the cafe of felony, where the judgment is to be hanged, the king (it hath been faid) cannot legally order even a peer to be beheaded. But this doctrine will be more fully confidered in a fubfequent chapter.

AGAIN: in some cases homicide is justifiable, rather by the permiffion, than by the abfolute command of the law: either for the advancement of public juftice, which without such indemnification would never be carried on with proper vigour; or, in fuch instances where it is committed for the prevention of some atrocious crime, which cannot otherwise be avoided.

2. HOMICIDES, committed for the advancement of public juftice, are; 1. Where an officer, in the execution of his office, either in a civil or criminal cafe, kills a person that affaults and resists him'. 2. If an officer, or any private perfon, attempts to take a man charged with felony, and is refifted; and, in the endeavour to take him, kills him ". This is of a piece with the old Gothic constitutions, which (Stiernhook informs us ") 'furem, fi aliter capi non poffet, occidere permittunt." 3. In cafe

of a riot, or rebellious affembly, the officers endeavouring to difperfe the mob are justifiable in killing them, both at common law, and by the riot act, 1 Geo. I. c. 5. 4. Where the prifoners in a gaol, or going to gaol, affault the gaoler or officer, and he in his defence kills any of them, it is juftifiable, for the fake of preventing an escape P. 5. If trefpaffers in forefts, parks, chafes, or warrens, will not surrender themselves to the keepers, they may be flain; by virtue of the ftatute 21 Edw. I. ft. 2. de malefactoribus in parcis, and 3 & 4 W. & M. c. 10. But, in all these cafes, there must be an apparent neceffity on the officer's fide; viz. that the party could not be arrested or apprehended, the riot could not be fuppreffed, the prifoners could not be kept in hold, the deer-ftealers could not but escape, unless fuch homicide were committed: otherwife, without fuch abfolute neceffity, it is not justifiable. 6. If the champions in a trial by battel killed either of them the other, fuch homicide was juftifiable, and was imputed to the juft judgment of God, who was thereby prefumed to have decided in favour of the truth a.

3. IN the next place, fuch homicide, as is committed for the prevention of any forcible and atrocious crime, is juftifiable by the law of nature'; and alfo by the law of England, as it stood fo early as the time of Bracton, and as it is fince declared by ftatute 24 Hen. VIII. c. 5. If any perfon attempts a robbery or murder of another, or attempts to break open a house in the night time, (which extends also to an attempt to burn it,) and shall be killed in fuch attempt, the flayer fhall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets; or to the breaking open of any house in the day time, unless it carries with it an attempt of robbery also. So the Jewish law, which punished no theft with death, makes homicide only justifiable, in cafe of nocturnal housebreaking: "if a thief be found breaking up, and he be smitten