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CHAPTER XIV.

OF HOMICIDE.

In the ten preceding chapters we have considered, first, such crimes and misdemeanors 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.

against in

Were these injuries, indeed, confined to individuals only, and Offenses did they affect none but their immediate objects, they would dividuals, 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 volume. 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 endanger the subversion of all civil society. Upon these accounts it is that, besides the private [177] 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 offenses 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 three-fold punishment inflicted on all delinquents: first, for the private wrong to the party injured; secondly, for the offense against the king by disobedience to the laws; and, thirdly, for the crime against the public by their evil example." Of which we may trace the ground-work in what Tacitus tells us of his Germans ;b that, whenever offenders were fined, "pars mulctæ regi, vel civitate, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur."

their

These crimes and misdemeanors against private subjects are against principally of three kinds : against their persons, their habita- sons, their tions, and their property.

habitations

Stiernhook, 1. 1, c. 5.

b De Mor. Germ., c. 12.

their prop

erty.

Of crimes injurious to the persons of private subjects, the most principal and important is the offense 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 offense 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.

Homicide is justifiable,

or felonious.

Now homicide, or the killing of any human creature, is of excusable, three kinds: justifiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the third is [178] the highest crime against the law of nature that man is capable of committing.

Crimes against the person.

Homicide.

I. JUSTIFIABLE; as, 1. Of necessity.

I. Justifiable homicide is of divers kinds.

1. Such as is owing to some unavoidable necessity, without any will, intention, 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 hath 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 extra-judicially, is murder. For, as Bractond very justly observes, "istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet juste occidatur isté, 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

c 1 Hal., P. C., 497.

d Fol. 120.

1 Hawk., P. C., 70; 1 Hal., P. C., 497

f Burnet in his Life.

requisition it is that justifies the homicide. If another person [179] doth it of his own head, it is held to be murder ;s even though it be the judge himself. 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; 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) can not legally order even a peer to be beheaded. But this doctrine will be more fully considered in a subsequent chapter.

sion of law.

Again in some cases homicide is justifiable, rather by the By permispermission 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 vigor; or in such instances where it is committed for the prevention of some atrocious crime which can not otherwise be avoided.

70.

for advance.

2. Homicides committed for the advancement of public just- 2. Homicide ice are, 1. Where an officer, in the execution of his office, ment of justeither in a civil or criminal case, kills a person that assaults ice. 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 endeavor to take him, kills him.m This is similar to the old Gothic constitutions, which (Stiernhook informs us") "furem, si aliter capi non posset, occidere permittunt." 3. In case [180] of a riot or rebellious assembly, the officers endeavoring to disperse the mob are justifiable in killing them, both at common law and by the Riot Act, 1 Geo. I., c. 5. 4. Where the prisoners in a jail, or going to a jail, assault the jailer or officer, and he in his defense kills any of them, it is justifiable for the sake of preventing an escape. 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.' But in all these cases there must be an apparent necessity on

1 Hal., P. C., 501; 1 Hawk., P. C.,

Dalt., Just., c. 150.

i Finch, L., 31; 3 Inst., 52; 1 Hal., P. C., 501.

3 Inst., 52, 212.

(1) See ante, 100.

(2) These acts are repealed by the

11 Hal., P. C., 494; 1 Hawk., P. C.,71.
m 1 Hal., P. C., 494.

n De Jure Goth., 1. 3, c. 5.

• 1 Hal., P. C., 495; 1 Hawk., P. C., 161.

P 1 Hal., P. C., 496.

16 Geo. III., c. 30, and 7 & 8 Geo. IV.,
c. 27.

To prevent crime.

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 favor 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, and also by the law of England, as it stood so early as the time of Bracton, and as it is since declared by 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 nighttime (which extends also to an attempt to burn it), 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 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 beaking up, and [181] he be smitten that 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."" 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, which amounts very nearly to the same as is permitted by our own constitutions.^

In defense of chastity.

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

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* Also abolished in New York.-(2 R. S., 409, § 4.)

t In New York, homicide is justifiable in resisting an attempt to commit a felony in a dwelling-house, although the attempt be made in the daytime-(See post, p. 202, n. *.)

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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 endeavored 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 that all matter 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 law of England, like that of every other well- [182] regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a systein; 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.*†

BLE HOMI

CIDE.

II. Excusable homicide is of two sorts: either per infortu- II. EXCUSAnium, by misadventure, or se defendendo, upon a principle of CIIself-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 venture

1. Homicide by misad

b 1 Hal., P. C., 485, 486.

e Ess. on Gov., p. 2, c. 5.

(5) See 8 C. & P., 182.

(6) It is expressly enacted by the stat. 9 Geo. IV., c. 31, s. 10, that no

punishment or forfeiture shall be incur-
red by any person who shall kill anoth-
er by misfortune, or in his own defense,
or in any manner without felony.

*

To justify the taking of life in prevention of crime, it is not necessary, by the laws of New York, that the crime, if committed, would be punishable with death. It is enough that the crime attempted to be committed be a felony, subjecting the offender to imprisonment in a state prison.-(See post, p. 202, u. *.)

If the homicide be found excusable by the jury, it is their duty to find a gen eral verdict of not guilty, and, of course, there can be no punishment.—(See post, p. 201, n. *.)

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