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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 os, 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 (2). 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 un. known 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 80 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 (6) 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 (2) 1 Hal. P. C. 448.

(a) Elem. c. 5. (y) Elem. c. 5. See also 1 Hawk, P. C. 73. (0) Numb. c. 35, and Deut. c. 19 (2) 1 Hawk. P. C. 72.

(10) In New-York homicide is excusable tion, or upon a sudden combat, without any when committed, I st. in doing any lawful act undue advantage being taken, and without by lawful means with usual and ordinary any dangerous weapon being used, and not caution, and without any unlawful intent, 2nd. done in a cruel or unusual manner. (2 R. S. By accident and misfortune in the heat of pas. 660, $ 4.) sion, upon any sudden and sufficient provoca


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 (l) 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 (f): and in France (8) 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 ath (h); which however is with reason denied by later and more accurate writers (*). 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 (?), 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 (c), yet was punished by the Athenian law with cutting off the hand, which committed the desperate deed (p). And


(c) Cod. 9. 16. 5.
(d) Plato de Leg. lib. 9.

(e) To this expiation by banishmont the spirit of
Patroclus in Homer may be thought to allude,
when he reminds Achilles, in the twenty-third
Iliad, that when a child he was obliged to Ree his
"country for casually killing his playfellow ;
πιος ούς εθελων.»

(f) Stiernh. de jure Goth. I. 3, c. 4.
(g) De Morney, on the digest.
(k) 2 Inst. 148. 315.

(0) 1 Hal. P. C. 425. 1 Hawk. P. C. 75. Fost. 282, &c.

(k) Fost. 287.
(1) Ibid. 283.
(m) 2 Hawk. P. C. 381.
(n) Fost. 288.

(0) "Si quis impatientia doloris, aut taedio vitae, aut morbo, aut furore, aut pudore, more maluit, non animadvertatur in eum." Ff. 49. 16. 6

(0) Pot. Antiq. b. 1, c. 26.

1 yn

(11) But now all forfeiture and punishment versal practice to direct an acquittal. is removed in such cases. See 9 Geo. IV. c. The jury are to find a general verdict of 31, 9 10 ; ante 180, note (5).

acquittal in all cases where the homicide was All forfeitures, except for treason, are abo- justifiable or excusable. (2 R. S. 661, $ 5.) lished in New York. (2 R. S. 701, 922.) (13) This offence is not noticed in the laws

(12) Where the homicide does not amount of New York. to murder or manslaughter, it is now the uni.

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also the law of England wisely and religiously considers, that no man hath a power to destroy lise, 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 (9) Keilw. 136.

(3) See page 24.

(r) 1 Hawk. P. C. 68. 1 Hal. P. C. 413.

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

(14) In New-York, the adviser is guilty of officer shall give directions for the private in. manslaughter in the first degree, and punish- terment of the remains of such person felo de able with imprisonment not less than 1 years. se, without any stake being driven through the (2 R. S. 661, 97.).

body of such person, in the churchyard or (15) He who kills another upon his desire other burial-ground of the parish or place in or command, is in the judginent of the law as which the remains of such person might by the much a murderer, as if he had done it merely laws or customs of England be interred, if the of his own head ; and the person killed is not verdict of felo de se had not been found against looked upon as a selo de se, inasmuch as his such person, such interment to be made within assent was merely void, being against the law twenty-four hours from the finding of the in of God and man. 1 Haw. P. C. c. 27, 96; quisition, and to take place between the hours Keilw. 136; Moor, 754. And see Rex v. Sawo of nine and twelve at night. Proviso ($ 2.) yer, 1 Russell, 424 ; Rex v. Evans, id. 426. not to authorize the performing of any of the

(16) But now by 4 Geo. IV. c. 52, g 1, it rites of christian burial on the interment of the shall not be lawful for any coroner, or other of. reinains of any such person, nor to alter the ficer having authority to hold inquests, to issue laws or usages relating to the burial of such any warrant or other process directing the in person, except so far as relates to the interterment of the remains of persons, against ment of such remains in such yard or burial. whom a finding of felo de se shall be had, in ground at such time and in such manner. any public highway; but such coroner or other

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 fron, 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 subilanco 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 (r) Finch, L. 216.

(2) I Hawk. P. C. 82.

(y) Kelyng. 135. (w) Suernh. de jure Goth. I. 3, c. 4.

(17) As to what a felo de se shall forfeit, it personal property, but not as to his real estate. seems clear, that he shall forfeit all chattels Plowd. 261.' No part of the personal estate real or personal which he has in his own right; of a felo de se vests in the king, before the selfand also all chatiels real whereof he is pos- murder is found by some inquisition; and, sessed, either jointly with his wife, or in her consequently, the forfeiture thereof is saved right; and also all bonds and other personal by a pardon of the offence before such finding. things in action, belonging solely to hinself; 5 Co. Rep. 110, b. 3 Inst. 54, 1 Saund. 362, and also all personal things in action, and, 1 Sid. 150, 162. But if there be no such paras some say, entire chattels in possession don, the whole is forfeited immediately after to which he was entitled jointly with an. such inquisition, from the time of the act other, or any account, except that of mer. done by which the death was caused, and all Chandise. But it is said that he shall forfeit intermediate alienations and titles are avoided. a moiety only of such joint chattels as may Plowd. 260, 1 Hale, P. C. 29, 5 Co. Rep. 110, be severed, and nothing at all of what he was Finch, L. 216. See also upon this subject, possessed of as executor or administrator. Lambert v. Taylor, 6 D. and R. 188, 4 B. and i Haw. P. C. c. 27, 57. The blood of a C. 138. felo de se is not corrupted, nor his lands of in- (18) See note 10, p. 186. In New York, heritance forfeited, nor his wife barred of her homicide, when not justifiable or excusable, is dower. 1 Haw. P.C. c. 27, 9 8; Plowd. 261, murder or manslaughter: the first punished b. 262, a; 1 Hale, P. C. 413. The will of á by hanging, the last by imprisonment. Manfelo de se, therefore, becomes void as to his


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

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, slaughter is divided into 4 degrees : the first degree. (2 R. S. 661, 662, 05 to 19. & 3 R. (or highest) degree may be committed : 1. By S. App. p. 158.) the acl, procurement, or culpable negligence, Manslaughter in the first degree is punisbof a person perpetrating or attempting to per- able with imprisonment not less than seven petrate any crime or misdemeanor not amount- years : in the 2nd degree not less than 4, nor ing to a felony, in cases where such killing more than 7: in the 3d degree not less than 2, would be murder at common law. 2. By as- por more than 4: in the 4th degree, not more sisting another to commit suicide. 3. By wil. than 2 years, and a fine of not more than fully killing an unborn quick child, by any in. 1000 dollars. (Id. 9 20.) jury to the mother, which would be murder if it It may be proper to subjoin here the stato. resulted in the death of the mother.

tory definition of murder ;-it is the killing of Manslaughter in the second degree is : 1. a human being without the authority of law, The wilful killing of a quick child of which when committed in the following cases, unless any woman is pregnant, unless the killing was it be manslaughter, or excusable or justifiable necessary to preserve the life of the mother, or homicide : 1. When perpetrated from a prewas advised by two physicians as being ne- meditated design to effect the death of the percessary for that purpose. 2. The killing of a son killed, or of any human being. 2. When buman being without a design to effect death, in perpetrated by any act imminently dangerous a heat of passion, but in a cruel and unusual to others, and evincing a depraved mind, re. manner, unless it be committed under such gardless of human lise, without any premedicircumstances as to constitute excusable or lated design to effect the death of any particojustifiable bomicide. 3. The unnecessary kill. lar individual. 3. When perpetrated without ing of another, while resisting an attempt by any design to effect death, by a person engaged such other to commit any unlawful act, or after in the commission of a felony. such attempt shall have failed.

It is also murder for any inhabitant or resiManslaughter in the third degree is : 1. dent of this state, by previous appointment or The killing of another in the heat of passion, engagement to fight a duel out of the state, without a design to effect death, by a dangerous and in so doing to inflict a wound upon his anweapon ; except in cases where the statute tagonist or any other person, whereof the perhas inade such killing justifiable or excusable. son thus injured shall die within this state: 2. The involuntary killing of another, by the act, and every second in such duel is also a murprocurement, or culpable negligence, of any derer. But a former conviction or acquittal in person, while such person is committing or at- another state or country is a defence here. (2 tempting to commit any trespass or other injury R. S. 657, 0 5, 6, 7.) to private rights or properiy. 3. Where the It will be seen that our statutes have mateowner of a mischievous animal, knowing its rially altered the common law, and they must propensities, willingly suffers it to go at large, create many difficult questions, the solution of or keeps it without ordinary care ; and the ani- which must be obtained by a careful examinamal, while so at large or unconfined, kills any tion of one part with the other, and by refe. one who has taken all the precautions that rence to the former law. There is in one part circumstances may permit to avoid the ani. a confusion of expression, which, it is but jus. mal. 4. Where any one navigating any boat tice to say, does not often occur in our Re. or vessel for gain, wilfully or negligently re- vised Statutes. An essential part of the de. ceives so many passengers, or so much lading, finition of murder is, that it is the commission as to sink or overset ihe vessel, and thereby of certain acts in cases in which they would any one is drowned or otherwise killed. 5. not be manslaughter. (2 R. S. 657, 65.). And Where any one having charge of a steamboat an equally essential part of the definition of for passengers, or having charge of its boiler manslaughter in the fourth degree is, that it be or other apparatus for the generation of steam, a homicide that is not declared to be murder. from ignorance or gross neglect, or to excel (Id. 662, $ 19.) So that, to know what mur. in speed any other boat, allows to be created der, the greatest of these offences, is, we must suoh an undue quantity of steam, as to burst or first learn what is manslaughter : and, when break the boiler, or other such apparatus, or any we turn to the definition of manslaughter in machinery connected with it, and any one is the fourth degree, the least of these offences, killed by such bursting or breaking. 6. we cannot discover its meaning till we learn Where a physician, while intoxicated, does the meaning of murder. Thus the Revisers any act that causes the death of his patient, have here been guilty of defining in a circle. though without intending to cause deaih. The intention, however, is sufficiently plain,

Manslaughter in the fourth, degree is: 1. that manslaughter in the fourth degree is any the involuntary killing of another by any wea. unjustifiable or inexcusable homicide less cul. pon, or by means neither cruel nor unusual, in pable than the other degrees of manslaughter; the heat of passion in cases not declared to he and then the definition of murder also is freed excusable homicide. 2. Every other killing from confusion. of a human being by the act, procurement, or Murder, treason, and arson in the first deculpable negligence of another, when such gree, and those offences alone, are punished killing is not declared to be justifiable or excu. with death (2 R. S. 656, Ø 1.), which is inflict sable, or murder or manslaughter in a higher ed by hanging. (Id. 659, 0 25.)

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