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.()

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, (1) 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 chancemudley 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 po, sibility of his escaping without killing his assailant, he is justified in doing so, after having done his best to retreat. Fort. 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 assaults 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 exense 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 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 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 signed 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, (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) (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 Dent. 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 playfellow ; " νηπιος ουκ εθελω (f) Stiernh. de jure Goth. 1. 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.

(o)" Si quis impatientia doloris, aut tædio vitæ, aut morbo, aut furore, aut pudormore maluit, non animad. vertatur in eum." Ff. 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.]

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 accessories 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) 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) (9) 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 nielancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed 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)

[*190]

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; (10) 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 felou's lifetime, which was the cause of his death. As if husband and wife he possessed jointly of a term of years in 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. (11).

(q) Keilw. 136.
(u) Finch, L. 216.

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

(8) See page 24. (t) 1Hal. P. C. 412.

(9) [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 Hawk. P. C. c. 27, s. 6; Keilw. 136; Moor. 754. And see Rex v. Sawyer 1 Russell, 424; Rex v. Evans, id. 426.]

(10; Interment in the highway, with a stake driven through the body, is done away, with by statute 4 Geo. IV, c. 52, but it must be private, and without the rites of Christian burial.

(11) [As to what a felo de se shall forfeit, it 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. 1 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 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 self-murder 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; 1 Sid. 150, 162. But if there be no such

But

The other species of criminal homicide is that of killing another man. 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 killing of [*191 ] 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; quæ aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiæ calore et impetu." (w) And hence it follows, that in manslaughter there can be no accessories 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 there 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) But in this and in every other 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, and accordingly amounts to murder. (z) (12) So if a man takes another in the act of adultery with his wife, and kills him directly upon the spot: though this was allowed by the laws of Solon, (a) as likewise by the Roman civil law (if the adulterer was found in the husband's own house), (b) and also among the ancient Goths; (c) yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is man[*192] slaughter. (d) (13) It is however the lowest degree of it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation. (e) Manslaughter, therefore, on a sudden provocation differs from excusable homicide se defendendo in this: that in one case there is an apparent necessity, for self-preservation, to kill the aggressor; in the other, no necessity at all, being only a sudden act of revenge. The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure in this; that misadventure always happens in consequence of a lawful act, but, this species of manslaughter in consequence of an unlawful one. As, if two persons play at sword and buckler, unless by the king's command, and one of them kills the other: this is manslaughter, because the original act was unlawful; but it is not murder, for the one had no intent to do (w) Stiernh. de jure Goth. l. 3, c. 4 (x) 1 Hawk. P C. 82 (y) Kelyng. 135. Plutarch, in vita Solon. (b) Ff. 48, 5, 24. (c) Stiernh. de jure Goth. 1. 3, c. 2. (e) Sir. T. Raym. 212.

(v) 1 Hal. P. C. 466.
(z) Fost. 296. (a)
(d) 1 Hal. P. C. 486.

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 r. Taylor, 6 D. and R. 188; 4 B. and C. 138.]

The offence of self-murder is not punishable in the United States.

(12) The question what is sufficient cooling time under all the circumstances of the case is one of fact for the jury, in which the nature of the aggravation is an important consideration. See Rex v. Lynch, 5 C. and P. 324; Rex v. Hayward, 6 C. and P. 157; Maher v. People, 10 Mich. 212. This doctrine though disputed (2 Bish. Cr. L. § 642; Whart. Cr. L. § 984), is never theless practically acted upon, and is believed to be sound.

(13) See State v. Samuel, 3 Jones, N. C. 74; State v. John. 8 Ired 330; Whart. Cr. L. § 983