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. 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 [183] is unlawful. Thus, by an edict of the Emperor Constantine,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, "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 of 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 has 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 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 a 1 Hawk., P. C., 73, 74. 1 Hal., P. C., 473, 474. (7) This distinction is immaterial. Where an unqualified person by accident shot another in sporting, it was held to be no greater offense than in a qualified person. 1 East, P. C., 260. 9. And see now the 1 & 2 Will. IV., c. 32; ante, p. 175, note (22). i 1 Hal., P. C., 473; 1 Hawk., P. C.,74 h Plato, De LL., lib. 7; Ff., 9, 2, 7. 1 Hawk., P. C., 73. 170; 6 C. & P., 103. And all struggles in anger, whether by fighting, wrestling, or in any other mode, are unlawful, and death occasioned by them is manslaughter at the least. 9 C. & P., 359. It seems that fencing or boxing in private. to learn the art, is not illegal, though public exhibitions of sparring matches (8) Sen 1 C & P., 537; 5 C. & P., are. 1 Bing., 1. similar cases, the slayer is guilty of manslaughter, and not misadventure only, for these are unlawful acts.k in self-de 2. Homicide in self-defense, or se defendendo, upon a sudden 2. Homicide affray, is also excusable, rather than justifiable, by the English fense. law. This species of self-defense must be distinguished from that just now mentioned, as calculated to hinder the perpetra-, [184] tion of a capital crime; which is not only a matter of excuse, but of justification. But the self-defense 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 by 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 self-defense upon a sudden rencounter.m This right of natural defense 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 can not, therefore, legally exercise this right of preventive defense 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-defense, it must appear that the slayer had no other possible (or, at least, probable) means of escaping from his assailant. It is frequently difficult to distinguish this species of homicide (upon chance-medley in self-defense) from that of manslaughter, in the proper legal sense of the word." 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 hath not begun to fight, or (having begun) endeavors to decline any further struggle, and afterward, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defense. For which reason, the law requires that the person who kills another in his own defense should have retreated as far as he conven 1 Hawk., P. C., 74; 1 Hal., P. C., 472; Fost., 261. Staunf., P. C., 16. m3 Inst., 55, 57; Fost., 275, 276. • Fost., 277. In New York, a party under such circumstances would not, it seems, be deemed guilty of manslaughter, but the homicide would be considered excusable; provided that the death happened without any undue advantage having been taken, or dangerous weapon having been used, and that the mortal wound was not inflicted in a cruel or unusual manner.-(See post, p. 202, n. *.) [185] iently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not fictitiously, 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 honor; 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 further: "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 ; 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 defense he may kill his assailant instantly. And this is the doctrine of universal justice, as well as of the municipal law. And, as the manner of the defense, 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 defense. Neither, under the color of selfdefense, 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. But if A., upon a sudden quarrel, assaults B. first, and upon B.'s returning the assault, A. really and bonâ fide flees, and, being driven to the wall, turns again upon B. and kills him, this may be se defen[186] dendo, according to some of our writers; though others have thought this opinion too favorable, inasmuch as the necessity, to which he is at last reduced, originally arose from his own fault. Under this excuse of self-defense the principal civil and natural relations are comprehended; therefore, master and servant, parent and child, husband and wife, killing an assailant in the necessary defense of each other respectively, are excused; the act of the relation assisting being construed the same as the act of the party himself. There is one species of homicide se defendendo, where the party 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 P 1 Hal., P. C., 481, 483. Ff., 9, 2, 45. ↑ 1 Hal., P. C., 483. Puff., b. 2, c. 5, § 13. t1 Hal., P. C., 479. w 1 Hawk., P. C., 75. * 1 Hal., P. C., 484. 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 thrust 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-defense; 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-defense, 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 misbehavior in the person who takes it away, unless by the command or express permission of the law. În 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. And as to the necessity which excuses a man who kills another se [187] defendendo, Lord Bacon 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 further 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 neighbor, 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 lawb appointed certain cities of refuge for him "who killed his neighbor unawares; as if a man goeth into the woods with his neighbor to hew wood, and his hand fetcheth a stroke with the ax to cut down a tree, and the head slippeth from the helve, and lighteth upon his neighbor that he die, he shall flee unto one of these 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 afterward stirred out of it till the death of the high-priest. In the imperial law, likewise, casual homicide was excused, by the indulgence of the emperor, signed with his own sign-manual," annotatione principis:" otherwise the death [188] of a man, however committed, was in some degree punishable. Among the Greeks,d homicide by misfortune was expiated by voluntary banishment for a year. 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 Frances 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. III. FELO NIOUS HOMI- [189] 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, a pardon and writ of restitution of his goods, as a matter of course and right, only paying for suing out the same. And, indeed, to prevent this expense in cases where the death has notoriously happened by misadventure or in self-defense, the judges will usually permit (if not direct) a general verdict of acquittal."** m 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, the pretended heroism, but real cowardice of Self-murder. the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure, though (9) And see now the stat. 9 Geo. IV., c. 31, s. 10; ante, p. 182, n. (6). *See ante, p. 182, n. *. |