9. Lastly, there is another offence, constituted by a variety of acts of parlia nent, which are so numerous and so confused, and the crime itself of so questionable a nature, that I shall not detain the reader with many observations thereupon. And yet it is an offence which the sportsmen of England seem to think of the highest importance, and a matter, perhaps the only one, of general and national concern, associations having been formed all over the kingdom to prevent its destructive progress. I mean the offence of destroying such beasts and fowls as are ranked under the denomination of game; which, we may remember, was formerly observed (i) (upon the old principles of the forest law) to be a trespass and offence in all persons alike who have not authority from the crown to kill game, (which is royal property,) by the grant either of a free warren or at least a manor of their own. But the laws called the game laws have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction. soever, that kill game out of their own territories, or even upon their own estates, without the king's license expressed by the grant of a franchise, are guilty of the first original offence of encroaching on the royal prerogative.20 And those indigent persons who do so without having such rank or fortune as is generally called a qualification are guilty not only of the original offence, but of the aggravations also created by the statutes for preserving the game; which aggravations are so severely punished, and those punishments so implacably inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor. The of fence, thus aggravated, I have ranked under the present head, because the only rational footing upon which we can consider it as a crime is that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings, which is an offence against the public police and economy *of the commonwealth.

[*175

The statutes for preserving the game are many and various, and not a little obscure and intricate, it being remarked(j) that in one statute only, 5 Anne, c. 14, there is false grammar in no fewer than six places, besides other mistakes; the occasion of which, or what denomination of persons were probably the penners of these statutes, I shall not at present inquire. It is, in general, sufficient to observe that the qualifications for killing game, as they are usually called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 1007. per annum," there being fifty times the property required to enable a man to kill a partridge as to vote for a knight of the shire: 2. A leasehold for ninety-nine years of 150l. per annum: 3. Being the son and heir apparent of an esquire (a very loose and vague description) or person of superior degree: 4. Being the owner or keeper of a forest, park, chase or warren. For unqualified persons transgressing these laws by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game or have it in possession at unseasonable times of the year or unseasonable hours of the day or night, on Sundays or on Christmas day, there are various penalties assigned, corporal and pecuniary, by different statutes; (k) on any of which, but only on one at a time, the justices may convict in a summary way, or (in most of them) prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12, no person, however qualified to kill, may make merchandise of this valuable privilege by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.2

(See book ii. page 417, &c.

(5) Burn's Justice, Game, ? 3.

(*) Burn's Justice, tit. Game.

20 The doctrine, so frequently repeated by the learned commentator, that no person had originally, or has now, a right to kill game upon his own estate without a license or grant from the king, is controverted in 2 book, p. 419, n.-CHRISTIAN.

21 It must be a fee-simple estate of 1007. a year, or an estate for life of 1501. per annum. -CHITTY.

All these statutes are repealed, by stat. 1 & 2 W. IV. c. 32, and the law in this respect

VOL. II.-29

419

CHAPTER XIV.

OF HOMICIDE.

*176] *IN the ten preceding chapters we have considered, first, such crimes and misdemeanours as are more immediately injurious to God and his holy religion; secondly, such as violate or transgress 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 its collective capacity; and are now, lastly, to take into consideration those which in a more peculiar manner affect and injure individuals or private subjects.

Were these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely 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 inquiries in the preceding book. But the wrongs which we are now to treat of are of a much more extensive consequence: 1. Because it is impossible 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 en*177] danger the subversion of all civil society. Upon these accounts it is *that, besides the private satisfaction due and given in many cases to the individual by action for the private wrong, the government also calls upon the offender to submit to public punishment for the public crime. And the prosecution of these offences is always at the suit and in the name of the king, in whom, by the texture of our constitution, the jus gladii, or executory power of the law, entirely resides. Thus, too, in the old Gothic constitution there was a threefold punishment inflicted on all delinquents; first, for the private wrong to the party injured; secondly, for the offence against the king by disobedience to the laws; and, thirdly, for the crime against the public by their evil example.(a) Of which we may trace the groundwork in what Tacitus tells us of his Gerruans, (b) that, whatever offenders were fined, "pars mulctæ regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur."

These crimes and misdemeanours against private subjects are principally of three kinds against their persons, their habitations, and their property.

Of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away that life which is the immediate gift of the great Creator, and of which, therefore, no man can be entitled to deprive himself or another but in some manner either expressly commanded in or evidently deducible from those laws which the Creator has given us; the divine laws, I mean, of either nature or revelation. The subject, therefore, of the present chapter, will be the offence of homicide, or destroying the life of man, in its several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it.

Now, homicide, or the killing of any human creature, is of three kinds: justi *178] fiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the *third is 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 some unavoidable necessity, without any will, intention,

(a) Stiernhook, l. 1, c. 5.

(b) De Mor. Germ. c. 12.

almost entirely altered. The necessity of any qualification for killing game was abolished, and it is enacted that every certificated person may kill game, subject to the law of trespass; and the sale of game by licensed persons and under certain restrictions is 'egalized.-STEWART.

or desire, and without any inadvertence or negligence, in the party killing, and therefore without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put a malefactor to death who had forfeited his life by the laws and verdict of his country. This is an act of necessity, 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.(c) For, as Bracton(d) very justly observes, "istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet justè occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam." And, further, 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.(e) 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 assizes and try prisoners, having very strong objections to the legality of the usurper's commission;(f) 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 [*179 murder,(g) even though it be the judge himself.(h) It must, further, 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,(i) 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 license 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.(k) But this doctrine will be more fully considered in a subsequent chapter.

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. Homicides committed for the advancement of public justice are:-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.(1) 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted, and in the endea vour to take him kills him.(m) This is similar to the old Gothic constitutions, which (Stiernhook informs us)(n) "furem, si aliter capi non posset, occidere *permittunt." 3. In case of a riot, or rebellious assembly, the officers [*180 endeavouring to disperse the mob are justifiable in killing them, both at common law,(0) 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.(p) 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. and 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.(q)3

In the next place, such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature;(r) and also by the law of England, as it stood so early as the time of Bracton,(s) 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,)(t) 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 daytime, unless it carries with it the 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 *181] for him; but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution."(u) At Athens, if any theft was committed by night, it was lawful to kill the criminal if taken in the fact:(w) 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:(x) which amounts to nearly the same as is permitted by our own consti

tutions.

The Roman law also justifies homicide when committed in defence of the chastity either of one's self or relations;(y) and so also, according to Selden,(z) 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,

121 Edw. I. stat. 2 is repealed, by 7 & 8 Geo. IV. c. 27, and 3 & 4 W. and M. c. 10, by 16 Geo. III. c. 30,-which latter is also repealed, by 7 & 8 Geo. IV. c. 27.-CHITTY.

2 If a person commits felony, and flies, or resists those who attempt to apprehend him, or is indicted of felony, and flies, or is arrested by warrant or process of law, and escapes, or is being conveyed to prison, and escapes,-in any of these cases, if he cannot be taken alive, and is killed in the act of resistance, the homicide is justifiable. 1 Hale, P. C. 489. 1 East, P. C. 298. So if an officer has a warrant against A., by name, for felony, or if A. is indicted of felony, or if the hue and cry is levied against him, by name, in any of these cases if A., though innocent, flies or resists, and is killed by the officer or any other person aiding him during flight or resistance, the person so killing him is indemnified. Fost. 318. 1 East, P. C. 300. And the officer, it seems, would be equally indemnified though he had no warrant, if he acted on a charge of felony, and on reasonable suspicion, even though it should appear in the result that no felony had been committed. Samuel vs. Payne, Doug. 359. Guppy vs. Brittlebank, 5 Price, 525.-CHITTY.

The trial by battle is abolished, by 59 Geo. III. c. 46. See further upon that subject, post, 346.-CHITTY.

Repealed, by 9 Geo. IV. c. 31, sect. 10 of which enacts that no punishment or for feiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner, without felony.--CHITTY.

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(c) "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 state of war, he may lawfully kill him that puts him under this unnatural restraint." How. ever 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 [*182 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, nowever, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment.

II. 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 agree. 1. Homicide per infortunium or misadventure is where a man, doing a lawfu 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:(d) 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 misadventure; for the act of correction is 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; (e) for the act of immoderate correction is unlawful. *Thus, by an edict of the emperor Constantine,(ƒ) [*183 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 sword-playing, 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 knight command or permit such diversion, it is said to be only misadventure; for then the act is lawful.(g) In the 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.(h)

(e) Ess. on Govt. p. 2, c. 5.
(4) 1 Hawk. P. C. 73, 74.
(e) 1 Hal. P. C. 473, 474.

(Cod. L. 9, t. 14.

(9) 1 Hal. P. C. 473. 1 Hawk. P. C. 74.
(4) Plato, de LL. lib. 7. Ff.9, 2, 7.

5 If a person driving a carriage happen to kill another, if he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; if he might have seen the danger, but did not look before him, it will be manslaughter; but if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death and excusable homicide. 1 East, P. C. 263. Where, on a false alarm of thieves, the master of the house killed one of the family by mistake, who had concealed himself in a closet, this was holden homicide by misfortune. Cro. Car. 538. Where an unqualified person by accident shoots another in sporting, it is no greater offence than in a qualified person. 1 East, P. C. 260, 269.—CHITTY.