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relation assisting being construed the same as the act of the party himself (x).

There is one species of homicide se defendendo, where the party slain is equally innocent as he who occasions his death: and yet this homicide is also excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish. As, among others, in that case mentioned by lord Bacon (y), where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man's is excusable through unavoidable necessity, and the principle of self-defence: since their both remaining on the same weak plank is a mutual, though innocent, attempt upon, and an endangering of, each other's life (10).

Let us next take a view of those circumstances wherein these two species of homicide, by misadventure and self-defence, agree; and those are in their blame and punishment. For the law sets so high a value upon the life of a man, that it always intends some misbehaviour in the person who takes it away, unless by the command or express permission of the law. In the case of misadventure, it presumes negligence, or at least a want of sufficient caution in him who was so unfortunate as to commit it; who therefore is not altogether faultless (z). And [*187] as to the necessity which excuses a man who kills another se de

fendendo, lord Bacon (a) entitles it necessitas culpabilis, and thereby distinguishes it from the former necessity of killing a thief or a malefactor. For the law intends that the quarrel or assault arose from some unknown wrong, or some provocation, either in word or deed: and since in quarrels both parties may be, and usually are, in some fault; and it scarce can be tried who was originally in the wrong; the law will not hold the survivor entirely guiltless. But it is clear, in the other case, that where I kill a thief that breaks into my house, the original default can never be upon my side. The law besides may have a farther view, to make the crime of homicide more odious, and to caution men how they venture to kill another upon their own private judgment; by ordaining, that he who slays his neighbour, without an express warrant from the law so to do, shall in no case be absolutely free from guilt.

Nor is the law of England singular in this respect. Even the slaughter of enemies required a solemn purgation among the Jews; which implies that the death of a man, however it happens, will leave some stain behind it. And the mosaical law (b) appointed certain cities of refuge for him "who killed his neighbour unawares: as if a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down a tree, and the head slippeth from the helve, and lighteth upon his neighbour that he die, he shall flee unto one of these

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cities and live." But it seems he was not held wholly blameless, any more than in the English law; since the avenger of blood might slay him before he reached his asylum, or if he afterwards stirred out of it till the death of the high priest. In the imperial law likewise (c) casual homicide was excused, by the indulgence of the emperor signed with his own sign manual, "annotatione principis :" otherwise the death of a man, however committed, was in some degree punishable. Among the Greeks (d) homicide by misfortune was expiated by voluntary ba- [*188] nishment for a year (e). In Saxony a fine is paid to the kindred

of the slain; which also, among the Western Goths, was little inferior to that of voluntary homicide (ƒ): and in France (g) no person is ever absolved in cases of this nature, without a largess to the poor, and the charge of certain masses for the soul of the party killed.

The penalty inflicted by our laws is said by sir Edward Coke to have been anciently no less than death (h); which however is with reason denied by later and more accurate writers (i). It seems rather to have consisted in a forfeiture, some say of all the goods and chattels, others of only part of them, by way of fine or weregild (k): which was probably disposed of, as in France, in pios usus, according to the humane superstition of the times, for the benefit of his soul who was thus suddenly sent to his account, with all his imperfections on his head. But that reason having long ceased, and the penalty (especially if a total forfeiture) growing more severe than was intended, in proportion as personal property has become more considerable, the delinquent has now, and has had as early as our records will reach (1), a pardon and writ of restitution of his goods as a matter of course and right, only paying for suing out the same (m) (11). And indeed to prevent this expense, in cases where the death has notoriously happened by misadventure or in self-defence, the judges will usually permit (if not direct) a general verdict of acquittal (n) (12).

III. Felonious homicide is an act of a very different nature from the former, being the killing of a human creature, of any age or sex, without justification or excuse. This may be done either by killing one's self, or another man.

*Self-murder (13), the pretended heroism, but real cowardice, of [189] the Stoic philosophers, who destroyed themselves to avoid those ills

which they had not the fortitude to endure, though the attempting it seems to be countenanced by the civil law (0), yet was punished by the Athenian law with cutting off the hand, which committed the desperate deed (p). And

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also the law of England wisely and religiously considers, that no man hath a power to destroy life, but by commission from God, the author of it: and, as the suicide is guilty of a double offence; one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one's self. And this admits of accessaries before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the adviser is guilty of murder (q) (14). A felo de se therefore is he that deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death: as if attempting to kill another, he runs upon his antagonist's sword: or, shooting at another, the gun bursts and kills himself (r) (15). The party must be of years of discretion, and in his senses, else it is no crime. But this excuse ought not to be strained to that length, to which our coroner's juries are apt to carry it, viz. that the very act of suicide is an evidence of insanity; as if every man, who acts contrary to reason, had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer. The law very rationally judges, that every melancholy or hypochondriac fit does not deprive a man of the capacity of

discerning right from wrong; which is necessary, as was observed [*190] in a former chapter (s), to *form a legal excuse. And therefore if a real lunatic kills himself in a lucid interval, he is a felo de se as much as another man (t).

But now the question follows, what punishment can human laws inflict on one who has withdrawn himself from their reach? They can only act upon what he has left behind him, his reputation and fortune on the former, by an ignominious burial in the highway, with a stake driven through his body (16); on the latter, by a forfeiture of all his goods and chattels to the king: hoping that his care for either his own reputation, or the welfare of his family, would be some motive to restrain him from so desperate and wicked an act. And it is observable, that this forfeiture has relation to the time of the act done in the felon's lifetime, which was the cause of his death. As if husband and wife be possessed jointly of a term of years in

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(14) In New-York, the adviser is guilty of manslaughter in the first degree, and punishable with imprisonment not less than 7 years. (2 R. S. 661, 7.)

(15) He who kills another upon his desire or command, is in the judgment of the law as much a murderer, as if he had done it merely of his own head; and the person killed is not looked upon as a felo de se, inasmuch as his assent was merely void, being against the law of God and man. 1 Haw. P. C. c. 27, § 6; Keilw. 136; Moor, 754. And see Rex v. Sawyer, 1 Russell, 424; Rex v. Evans, id. 426.

(16) But now by 4 Geo. IV. c. 52, 1, it shall not be lawful for any coroner, or other of ficer having authority to hold inquests, to issue any warrant or other process directing the interment of the remains of persons, against whom a finding of felo de se shall be had, in any public highway; but such coroner or other

(3) See page 24.

(t) 1 Hal. P. C. 412.

officer shall give directions for the private interment of the remains of such person felo de se, without any stake being driven through the body of such person, in the churchyard or other burial-ground of the parish or place in which the remains of such person might by the laws or customs of England be interred, if the verdict of felo de se had not been found against such person, such interment to be made within twenty-four hours from the finding of the in quisition, and to take place between the hours of nine and twelve at night. Proviso (§ 2.) not to authorize the performing of any of the rites of christian burial on the interment of the remains of any such person, nor to alter the laws or usages relating to the burial of such person, except so far as relates to the interment of such remains in such yard or burial. ground at such time and in such manner.

land, and the husband drowns himself; the land shall be forfeited to the king, and the wife shall not have it by survivorship. For by the act of casting himself into the water he forfeits the term; which gives a title to the king, prior to the wife's title by survivorship, which could not accrue till the instant of her husband's death (u). And though it must be owned that the letter of the law herein borders a little upon severity, yet it is some alleviation that the power of mitigation is left in the breast of the sovereign, who upon this, as on all other occasions, is reminded by the oath of his office to execute judgment in mercy (17).

The other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt, which divide the offence into manslaughter and murder. The difference between which may be partly collected from what has been incidentally mentioned in the preceding articles, and principally consists in this, that manslaughter, when voluntary, arises from the sudden heat of the passions, murder from the wickedness of the heart.

*1. Manslaughter is therefore thus defined (v), the unlawful [191] killing of another without malice either express or implied; which

may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act. These were called in the Gothic constitutions "homicidia vulgaria; quae aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiae calore et impetu (w)." And hence it follows, that in manslaughter there can be no accessaries before the fact; because it must be done without premeditation.


As to the first, or voluntary branch: if upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter and so it is, if they upon such an occasion go out and fight in a field; for this is one continued act of passion (x): and the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendendo, since their is no absolute necessity for doing it to preserve himself; yet neither is it murder, for there is no previous malice; but it is manslaughter (y) (18). But in this, and in every other

(u) Finch, L. 216.

(v) 1 Hal. P. C. 466.

(w) Stiernh. de jure Goth. 1. 3, c. 4.

(17) As to what a felo de se shall forfeit, seems clear, that he shall forfeit all chattels real or personal which he has in his own right; and also all chattels real whereof he is possessed, either jointly with his wife, or in her right; and also all bonds and other personal things in action, belonging solely to himself; and also all personal things in action, and, as some say, entire chattels in possession to which he was entitled jointly with another, or any account, except that of merchandise. But it is said that he shall forfeit a moiety only of such joint chattels as may be severed, and nothing at all of what he was possessed of as executor or administrator. Haw. P. C. c. 27, § 7. The blood of a felo de se is not corrupted, nor his lands of inheritance forfeited, nor his wife barred of her dower. 1 Haw. P. C. c. 27, § 8; Plowd. 261, b. 262, a; 1 Hale, P. C. 413. The will of a felo de se, therefore, becomes void as to his

(z) 1 Hawk. P. C. 82.
(y) Kelyng. 135.

personal property, but not as to his real estate. Plowd. 261. No part of the personal estate of a felo de se vests in the king, before the selfmurder is found by some inquisition; and, consequently, the forfeiture thereof is saved by a pardon of the offence before such finding. 5 Co. Rep. 110, b. 3 Inst. 54, 1 Saund. 362,

Sid. 150, 162. But if there be no such pardon, the whole is forfeited immediately after such inquisition, from the time of the act done by which the death was caused, and all intermediate alienations and titles are avoided. Plowd. 260, 1 Hale, P. C. 29, 5 Co. Rep. 110, Finch, L. 216. See also upon this subject, Lambert v. Taylor, 6 D. and R. 188, 4 B. and

C. 138.

(18) See note 10, p. 186. In New-York, homicide, when not justifiable or excusable, is murder or manslaughter: the first punished by hanging, the last by imprisonment. Man

case of homicide upon provocation, if there be a sufficient cooling-time for passion to subside and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge and not heat of blood, degree. (2 R. S. 661, 662, § 5 to 19. & 3 R. S. App. p. 158.)

slaughter is divided into 4 degrees: the first (or highest) degree may be committed: 1. By the act, procurement, or culpable negligence, of a person perpetrating or attempting to perpetrate any crime or misdemeanor not amount ing to a felony, in cases where such killing would be murder at common law. 2. By assisting another to commit suicide. 3. By wil fully killing an unborn quick child, by any inJury to the mother, which would be murder if it resulted in the death of the mother.

Manslaughter in the second degree is: 1. The wilful killing of a quick child of which any woman is pregnant, unless the killing was necessary to preserve the life of the mother, or was advised by two physicians as being necessary for that purpose. 2. The killing of a human being without a design to effect death, in a heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide. 3. The unnecessary kill ing of another, while resisting an attempt by such other to commit any unlawful act, or after such attempt shall have failed.

Manslaughter in the third degree is: 1. The killing of another in the heat of passion, without a design to effect death, by a dangerous weapon; except in cases where the statute has made such killing justifiable or excusable. 2. The involuntary killing of another, by the act, procurement, or culpable negligence, of any person, while such person is committing or attempting to commit any trespass or other injury to private rights or property. 3. Where the owner of a mischievous animal, knowing its propensities, willingly suffers it to go at large, or keeps it without ordinary care; and the animal, while so at large or unconfined, kills any one who has taken all the precautions that circumstances may permit to avoid the animal. 4. Where any one navigating any boat or vessel for gain, wilfully or negligently receives so many passengers, or so much lading, as to sink or overset the vessel, and thereby any one is drowned or otherwise killed. 5. Where any one having charge of a steamboat for passengers, or having charge of its boiler or other apparatus for the generation of steam, from ignorance or gross neglect, or to excel in speed any other boat, allows to be created suoh an undue quantity of steam, as to burst or break the boiler, or other such apparatus, or any machinery connected with it, and any one is killed by such bursting or breaking. 6. Where a physician, while intoxicated, does any act that causes the death of his patient, though without intending to cause death.

Manslaughter in the fourth, degree is: 1. the involuntary killing of another by any weapon, or by means neither cruel nor unusual, in the heat of passion in cases not declared to be excusable homicide. 2. Every other killing of a human being by the act, procurement, or culpable negligence of another, when such killing is not declared to be justifiable or excusable, or murder or manslaughter in a higher

Manslaughter in the first degree is punishable with imprisonment not less than seven years in the 2nd degree not less than 4, nor more than 7: in the 3d degree not less than 2, nor more than 4: in the 4th degree, not more than 2 years, and a fine of not more than 1000 dollars. (Id. § 20.)

It may be proper to subjoin here the statu tory definition of murder;-it is the killing of a human being without the authority of law, when committed in the following cases, unless it be manslaughter, or excusable or justifiable homicide: 1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being. 2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, without any premedi tated design to effect the death of any particular individual. 3. When perpetrated without any design to effect death, by a person engaged in the commission of a felony.

It is also murder for any inhabitant or resi dent of this state, by previous appointment or engagement to fight a duel out of the state, and in so doing to inflict a wound upon his antagonist or any other person, whereof the person thus injured shall die within this state: and every second in such duel is also a murderer. But a former conviction or acquittal in another state or country is a defence here. (2 R. S. 657, 5, 6, 7.)

It will be seen that our statutes have materially altered the common law, and they must create many difficult questions, the solution of which must be obtained by a careful examination of one part with the other, and by refe rence to the former law. There is in one part a confusion of expression, which, it is but jus tice to say, does not often occur in our Revised Statutes. An essential part of the definition of murder is, that it is the commission of certain acts in cases in which they would not be manslaughter. (2 R. S. 657, (5.) And an equally essential part of the definition of manslaughter in the fourth degree is, that it be a homicide that is not declared to be murder. (Id. 662, 19.) So that, to know what murder, the greatest of these offences, is, we must first learn what is manslaughter: and, when we turn to the definition of manslaughter in the fourth degree, the least of these offences, we cannot discover its meaning till we learn the meaning of murder. Thus the Revisers have here been guilty of defining in a circle. The intention, however, is sufficiently plain, that manslaughter in the fourth degree is any unjustifiable or inexcusable homicide less culpable than the other degrees of manslaughter: and then the definition of murder also is freed from confusion.

Murder, treason, and arson in the first degree, and those offences alone, are punished with death (2 R. S. 656, ◊ 1.), which is inflict ed by hanging. (Id. 659, § 25.)

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