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For as Bractond very justly observes, “istud homicidum, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet juste occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam." And farther, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder. And upon this account sir Matthew Hale himself, though he accepted the place of a judge of the common pleas under Cromwell's government, (since it is necessary to decide the disputes of civil property in the worst of times,) yet declined to sit on the crown side at the assises, and try prisoners; having very strong objections to the legality of the usurper's commission: a distinction perhaps rather too refined; since the punishment of crimes is at least as necessary to society, as maintaining the boundaries of property. Also such 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 requisition 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, servato juris ordine; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versa, it is murder: for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion 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 commission of homicide; and besides, this licence might occasion a very gross abuse of his power. The king indeed may remit part of a sentence; as in the case of treason, all but the beheading; but this is no change, no introduction of a new punishment; and in the case of felony, where the judgment is to be hanged, the king, it hath been said, cannot legally order even a peer to be beheaded, But this doctrine will be more fully considered in a subsequent chapter.
i Finch. L. 31. 3 Inst. 52.
1 Hal. P. C. 501.
3 Inst. 52. 212.
Again; in some cases homicide is justifiable, rather by the permission, than by the absolute command, of the law, either for the advancement of public justice, which without such indemnification would never be carried on with proper vigour; or, in such instances where it is committed for the prevention of some atrocious crime, which cannot otherwise be avoided.
2. Homicide, committed for the advancement of public justice, is; 1. Where an officer, in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him. 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted; and, in the endeavour to take him, kills him." This is similar to the old Gothic constitutions, which (Stiernhook informs us") "furem, si aliter capi non posset occidere permittunt." 3. In case of a riot, or rebellious assembly, the officers endeavouring to disperse the mob are justifiable in killing them, both at common law," and by the riot act, 1 Geo. I. c. 5. 4. Where the prisoners in a gaol, or going to a gaol, assault the gaoler or officer, and he in his defence kills any of them, it is justifiable for the sake of preventing an escape. 5. If trespassers in forests, parks, chases, or warrens, will not surrender themselves to the keepers, they may be slain; by virtue of the statute 21 Edw. I. st. 2. de malefactoribus in parcis, and 3 & 4 W. & M. c. 10. But in all these cases, there must be an apparent necessity on the officer's side; viz, that the party could not be arrested or apprehended, the riot could not be suppressed, the prisoners could not be kept in hold, the deer-stealers could not but escape, unless such homicide were committed: otherwise, without such absolute necessity, it is not justifiable. 6. If the champions in a trial by battle killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, who was thereby presumed to have decided in favour of the truth,¶
In the next place, such homicide as is committed for the prevention of any forcible and atrocious crime, is jus
11 Hal. P. C. 494 1 Hawk.
P. C. 71.
m1 Hal. P.C. 494.
n de jure Goth. 1.3. c.5.
I Hal. P. C. 495. 1 Hawk.
P. 1 Hal. P, C. 496,
11 Hawk. P. C. 71.
tifiable by the law of nature;' and also by the law of England, as it stood so early as the time of Bracton, and as it is since declared in statute 24 Hen. VIII. c. 5. If any person 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 such attempt, the slayer shall 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 case of nocturnal house-breaking; "if a thief be found breaking up, and he be smitten that he die, no blood shall be shed for him: but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution." At Athens, if any theft was committed by night it was lawful to kill the criminal, if taken in the fact and, by the Roman law of the twelve tables, a thief might be slain by night with impunity; or even by day, if he armed himself with any dangerous weapon:* which amounts very nearly to the same as is permitted by our own constitutions.
The Roman law also justifies homicide, when committed in defence of the chastity either of one's self or relations: > and so also, according to Selden,2 stood the law in the Jewish republic. The English law likewise justifies a woman, killing one who attempts to ravish her: a and so too the husband or father may justify killing a man, who attempts a rape upon his wife or daughter: but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other.b And I make no doubt but the forcibly attempting a crime of a still more detestable nature, may be equally resisted by the death of the unnatural aggressor; for the one uniform principle that
runs through our own, and all other laws, seems to be this; that where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does; who holds, "that all manner of force without right upon a man's person, puts him in a state of war with the aggressor; and, of consequence, that being in such a state of war, he may lawfully kill him that puts him under this unnatural restraint." However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.
In these instances of justifiable homicide, it may be observed that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error, or omission: so trivial however, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment.
Excusable homicide is of two sorts; either per infortunium, by misadventure; or se defendendo, upon a principle of self-preservation. We will first see wherein these two species of homicide are distinct, and then wherein they
1. Homicide per infortunium, or misadventure, is where a man, doing a lawful act, without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off and kills a stander-by; or where a person qualified to keep a gun, is shooting at a mark, and undesignedly kills a man: a for the act is lawful, and the effect is merely accidental. So where a parent is moderately correcting his child, a master his apprentice or scholar, or an officer punishing a criminal, and happens to occasion his death, it is only misdi Hawk. P. C. 73, 74.
c Ess. on gov. p. 2. c. 5.
adventure; for the act of correction was lawful: but if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensues, it is manslaughter at least, and in some cases, according to the circumstances, murder; for the act of immoderate correction is unlawful. Thus by an edict of the emperor Constantine, when the rigour of the Roman law with regard to slaves began to relax and soften, a master was allowed to chastise his slave with rods and imprisonment, and, if death accidentally ensued, he was guilty of no crime: but if he struck him with a club or a stone, and thereby occasioned his death; or if in any other yet grosser manner, “immoderate suo jure utatur, tunc reus homicidii sit."
But to proceed. A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act; and so are boxing and swordplaying, the succeeding amusement of their posterity: and therefore if a knight in the former case, or a gladiator in the latter, be killed, -such killing is felony or manslaughter. But, if the king command, or permit such diversion, it is said to be only misadventure; for then the act is lawful. In like manner as, by the laws both of Athens and Rome, he who killed another in the pancratium, or public games, authorized or permitted by the state, was not held to be guilty of homicide. Likewise to whip another's horse, whereby he runs over a child and kills him, is held to be accidental in the rider, for he had done nothing unlawful: but manslaughter in the person who whipped him, for the act was a trespass, and at best a piece of idleness, of inevitably dangerous consequence. And in general, if death ensues in consequence of an idle, dangerous, and unlawful sport, as shooting or casting stones in a town, or the barbarous diversion of cock-throwing in these and similar cases the slayer is guilty of manslaughter, and not misadventure only, for these are unlawful acts.
2. Homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable, rather than justifiable, by the
e 1 Hal. P. C. 473, 474. f Col. l.9. t. 14.
1 Hal. P. C. 473. 1 Hawk.
b Plato, de LL. lib.7. Ff. 2
1 Hawk. P. C. 73. k Ibid. 74. 1 Hal. P. C. 472. Fost: 261.