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casion 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. Homicide, 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 (). 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 (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 [*180] rebellious assembly, the officers endeavouring to disperse the mob are justifiable in killing them, both at common law (o), 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. & M. c. 10 (1). 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 (2). 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 (g) (3), (4).

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

(k) 3 Inst. 52. 212.

(1) 1 Hal. P. C. 494. 1 Hawk. P. C. 71. (m) 1 Hal. P. C. 494.

(n) de jure. Goth. 1. 3, c. 5.

(1) 21 Edw. I. st. 2, is repealed by 7 and 8 Geo. IV. c. 27, and 3 and 4 W. and M. c. 10, by 16 Geo. III. c. 30, which latter is also repealed by 7 and 8 Geo. IV. c. 27.

(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

(0) 1 Hal. P. C. 495. 1 Hawk. P. C. 161.
(p) 1 Hal. P. C. 496.

(g) 1 Hawk. P. C. 71.

(r) Puff. L. of N. 1. 2, c. 5.

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. Č. 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 v. Payne, Doug. 359; Guppy v. Brittlebank, 5 Price, 525.

(3) The trial by battle is abolished by 59 Geo. III. c. 46; see further upon that subject, post, 346.

(4) In New-York the excuses numbered above as 5 and 6, do not exist.

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 (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 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 housebreaking; if a thief be found breaking up, and he be "smitten that [*181] *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 (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 constitutions.

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, 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." However

just this conclusion may be in a state of uncivilized nature, yet the [181] law of England, like that of every other well-regulated commu

nity, 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 homi(s) fol. 155.

(t) 1 Hal. P. C. 488.

(u) Exod. xxii. 2.

(w) Potter. Antiq. b. 1, c. 24.

(z) Cic. pro Milone, 3. Ff. 9. 2. 4.

(y)" Divus Hadrianus rescripsit eum qui stuprum (5) Repealed by 9 Geo. IV. c. 31, 10 of which enacts, that no punishment or forfeiture shall be incurred by any person who shall kill

sibi vel suis inferentem occidit dimittendum.” (Ff. 48. 8. 1.)

(z) de legib. Hebraeor. 1. 4, c. 3.

(a) Bac. Elem. 64. 1 Hawk. P. C. 71.
(b) 1 Hal. P. C. 485, 486.
(c) Ess. on gov. p. 2, c. 5.

another by misfortune, or in his own defence,
or in any other manner without felony.

cide, 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 (7).

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 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 (d): for the act is lawful, and the effect is merely accidental (7). 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 [*183] Constantine (f), 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," immoderatè 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). Likewise

(d) 1 Hawk. P. C. 73, 74. (e) 1 Hal. P. C. 473, 474. (f) Col. l. 9, t. 14.

(6) In New-York, in addition to the excuses mentioned in the text, homicide is justifiable in a public officer, and those acting under him, when committed necessarily in arresting felons fleeing from justice or when committed by any person, 1. in resisting an attempt to murder him, or to commit any felony on him, or upon or in any dwelling-house in which such person may be, even in the daytime 2. in the lawful defence of himself or herself, or of husband, wife, parent, child, master, mistress, or servant, when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there is imminent danger that such design may be accomplished: or, 3. when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully sup

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

pressing a riot, or in lawfully keeping the peace. (2 R. S. 660, § 2. 3.)

(7) 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 con-cealed 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, 9.

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 (i) (8). 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 (k).

2. Homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable, rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mention[*184] ed, as calculated to *hinder the perpetration of a capital crime;

which is not only a matter of excuse, but of justification. But the self-defence which we are now speaking of, is that whereby a man may protect himself from an assault or the like, in the course of a sudden broil or quarrel, by killing him who assaults him. And this is what the law expresses by the word chance-medley, or (as some rather choose to write it) chaud-medley, the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion; both of them of pretty much the same import: but the former is in common speech too often erroneously applied to any manner of homicide or misadventure; whereas it appears by the statute 24 Hen. VIII. o. 5, and our ancient books (7), that it is properly applied to such killing as happens in self-defence upon a sudden rencounter (m). This right of natural defence does not imply a right of attacking: for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence, but in sudden and violent cases when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible (or, at least, probable) means of escaping from his assailant (9).

(i) I Hawk. P. C. 73.

(k) Ibid. 74. I Hal. P. C. 472. Fost. 261.

(8) Whenever death is the consequence of idle, dangerous, and unlawful sports, or of heedless, wanton, and indiscreet acts, without a felonious intent, the party causing the death is guilty of manslaughter. As, if a man rides an unruly horse amongst a crowd of people, 1 East, P. C. 231; or throws a stone, or shoots an arrow, over a wall, into a public and frequented street, 1 Hale, P. C. 475; or discharges his pistols in a public street upon alighting from his carriage, I Stra. 481; or throws a stone at a horse, which strikes a man, 1 Hale, P. C. 39; in any of these cases, though the party may be perfectly innocent of any mischievous intent, still, if death ensues, he is guilty of manslaughter. So, if the owner suffers to be at large any animal which he knows to be vicious and mischievous, and it kills a man, it has been thought by some that he may be indicted for manslaughter: but it is well agreed that he is guilty of a high misdemeanor, 2 Haw. P. C. c. 13, 8; and, in a very recent case of that

(7) Staundf. P. C. 16.

(m) 3 Inst. 55. 57. Fost. 275, 276.

kind, Best, C. J., laid it down as law, "that if a person thinks proper to keep an animal of this description (a bull), knowing its vicious nature, and another person is killed by it, it will be manslaughter in the owner, if nothing more; at all events it will be an aggra vated species of manslaughter. Blackman v. Simmons, 3 C. and P. 140. If workmen, in the ordinary course of their business, throw rubbish from a house in a direction in which persons are likely to pass, and any one passing is killed, this is manslaughter, 1 East, P. C. 262. Killing a person in a prize-fight is manslaughter, Ward's case, 1 East, P. C. 270. As to what are lawful sports, see Pulton, title, Riot.

(9) The general principle seems to be this. If a man is attacked in such a manner that there is no possibility of his escaping without killing his assailant, he is justified in doing so, after having done his utmost to retreat. Fost. 278; Kel. 128. But no assault, however vio lent, will justify killing the assailant, under


It is frequently difficult to distinguish this species of homicide (upon chance-medley in self-defence) from that of manslaughter, in the proper legal sense of the word (n). But the true criterion between them seems to be this when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter: but if the slayer has not begun the fight, or (having begun) endeavours to decline any farther struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence (o). For which reason the law requires, that the person, who kills another in his own defence, *should have [*185] retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailent; and that not factitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood. And though it may be cowardice, in time of war between two independent nations, to flee from an enemy; yet between two fellow-subjects the law countenances no such point of honour: because the king and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves (p). In this the civil law also agrees with ours, or perhaps goes rather farther: qui cum aliter tueri se non possunt, damni culpam dederint, innoxii sunt (q)." The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment; or as far as the fierceness of the assault will permit him (r): for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm : and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice (s), as well as of the municipal law.

And as the manner of the defence, so is also the time to be considered: for if the person assaulted does not fall upon the aggressor till the affray is over, or when he is running away, this is revenge, and not defence. Neither, under the colour of self-defence, will the law permit a man to screen himself from the guilt of deliberate murder: for if two persons, A and B, agree to fight a duel, and A gives the first onset, and B retreats as far as he safely can, and then kills A, this is murder; because of the previous malice and concerted design (t). But if A upon a sudden quarrel, assaults B first, and upon B's returning the assault, A really and bona fide flees; and, being driven to the wall, turns again upon B and kills him: this may be se defendendo according to some of our writers (u); *though others (w) have thought this opinion too favourable; in- [*186] asmuch as the necessity, to which he is at last reduced, originally

arose from his own fault. Under this excuse, of self-defence, the principal civil and natural relations are comprehended; therefore master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other respectively, are excused; the act of the

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