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; (7) 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. (4) 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 house-breaking; if a thief be found breaking up, and he be "smitten that he *die, there shall no blood be shed [*181] for him: but if the sun be risen upon him, there shall blood be shed for him; for he should make 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 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: (y) 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: bnt 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 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 [*182] 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.

(9)1 Hawk. P C. 71.

(u) Exod. xxii. 2.

(r) Puff. L. of N. l. 2, c. 5. (8) fol. 155. (t) 1 Hal. P. C. 488. (w) Potter, Antiq. b. 1, c. 25. (x) Cic. pro Milone. 3. Ff. 9, 2, 4. (y) "Divus Hadrianus.rescripsit eum qui stuprum sibi vel suis inferentem occidit dimittendum." (Ff. 48. 8. 1.) (z) De legib. Hebræor. l. 4, c. 3. (a) Bac. Elem. 34. 1 Hawk. P. C. 71. (b) 1 Hal. P. Č. 485, 486, (c) Ess. on Gov. p. 2, c. 5.

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

(4) [Repealed by 9 Geo. IV, c. 31, section 10 of which enacts, that no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony.]

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 standerby; 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.(5) 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 Constan[*183] tine, (f) when the rigor 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 king 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, 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 consequences.(i)(6)

(d) 1 Hawk, P. C. 73, 74.

(e) 1 Hal. P. C. 473, 474.

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

(f) Cod. l. 9. t. 14. Ff. 9. 2. 7. (i) 1 Hawk, P. C. 73.

(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.]

Homicide by practical joke is manslaughter. As, where a fire was kindled around a drunken man only to frighten him, but into which he rolled and was killed. Errington's Case, 2 Lewin C. C. 217. And see Fenton's Case, 1 id. 179; Martin's Case, 3 C. and P. 211.

(6) [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 frequented public street; 1 Hale, P.C. 475; or discharges his pistols in a public street upon alighting from his carriage: 1 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 kind, Best, C. J., laid it down as law, "that, if a person thinks proper to keep an animal of this description (a bol), knowing its vicious nature, and another person is killed by it, it will be manslaughter in

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 selfdefence must be distinguished from that just now mentioned, as calculated to *hinder the perpetration of a capital crime; which is not only a matter [*184] 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, c. 5, and our ancient books,() that it is properly applied to such killing as happens in selfdefence 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.(7)

It is frequently difficult to distinguish these species of homicide (upon chancemedley in self-defence) from that of manslaughter, in the proper legal sense of the word.(n) But the truc 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.(0) 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 assailant; 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 (k). Ibid 74. 1 Hal. P. C. 472. Fost 261. (1) Staundf. P. C. 16. (m) 3 Inst. 55, 57. Fost. 275, 276, (n) 3 Inst. 55. (0) Fost. 277.

the owner, if nothing more; at all events, it will be an aggravated 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.]

(7) [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 best to retreat. Fot. 278; Kel. 128. But no assault, however violent, will justify killing the assailant, under the plea of necessity, unless there is a clear manifestation of a felonious intent. 1 East, P. C. 277; 1 Russel, 551. And an officer who kills one who resists him in the execution of his office, and even a private person that kills one who feloniously as saults him in the highway, may justify the fact without retreating at all. 1 Haw. P. C. c. 29, § 16; 1 Hale P. C. 41; 3 Inst. 56.]

On this subject of homicide in self-defence and of the necessity of endeavor to avoid so serious a consequence, see note 1, book 3, page 3.

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: inasmuch as the necessity, to which he is at last reduced, originally arose from his [*186] 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 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.

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 as to the necessity which excuses a man who *kills another se defendendo, Lord Bacon (a) entitles it necessitas culpabilis, and thereby dis[*187] tinguishes 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 aosolutely 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 when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour that he die, he shall flee unto one of those 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 sigued with his own signmanual, "annotatione principis:" otherwise the death of a man, however committed, was in some degree punishable. Among the Greeks (d) homicide by [*188] misfortune was expiated by voluntary *banishment 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 (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, (7) a pardon and writ of restitution of his goods as a matter of course and right only paying for suing out the same. (m) (8) 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)

III. Felonious homicide is an act of 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, the pretended heroism, but real cowardice, of the Stoic [*189] 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, (o) yet was punished by the Athenian law with cutting off the hand, which committed the desperate deed. (p) And also the law of England wisely and religously 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,

(c) Cod. 9, 16, 5.

(d) Plato de Leg. lib. 9.

(b) Numb, c. 35, and Deut. c. 19. (e) To this expiation by banishment 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 flee his country for casually killing his play fellow ; “ νηπιος ουκ εθελω.” (f) Stiernh. de jure Goth. l. 3. c. 4. (g) De Morney, on the digest. (i) 1 Hal. P. C. 425. 1 Hawk. P. C. 75. Fost. 282, &c. (m) 2 Hawk. P. C. 381. (n) Fost. 288.

(k) Fost. 287.

(h) 2 Inst. 148, 315.
(l) Ibid. 283.

(0) Si quis impatientia doloris, aut tædio vitæ, aut morbo, aut furore, aut pudormore maluit, non animadvertatur in eum." Fƒ. 49, 16, 6.

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

(8) [But now all forfeiture and punishment is removed in such cases. See 9 Geo. IV. c. 31, s. 10.]