CHAPTER THE FOURTEENTH. OF HOMICIDE. N the ten preceding chapters we have considered, first, such crimes and misdemesnors 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. Crimes against in- 124 against their per dividuals, are, property. WERE these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely under the notion of private wrongs; for sons, habitations, or 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: 5. Because by their VOL. IV. example N [177] 125 Against their persons, the principal crime is homicide. 126 Homicide is either example and evil tendency they threaten and endanger the subversion of all civil society. Upon these accounts it is, that, besides the private 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 offences 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 threefold punishment inflicted on all delinquents: first, for the private wrong to the party injured; secondly, for the offence 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; that, whenever offenders were fined, "pars "mulctae regi, vel civitati, pars ipsi qui vindicatur vel pro"pinquis ejus, exsolvitur." σε THESE crimes and misdemesnors against private subjects are principally of three kinds; against their persons, their habitations, and their property. Or crimes injurious to the persons of private subjects, the most principal and important is the offence 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 offence 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. Now homicide, or the killing of any human creature, is of three kinds; justifiable, excusable, and felonious. The first (a) Stiernhook, l. 1. c. 5. (b) De Mor, Germ, c. 12, has has no share of guilt at all; the second very little; but the third is the highest crime against the law of nature that man is capable of committing. I. JUSTIFIABLE homicide is of divers kinds. d 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 extraju dicially, is murder. For as Bracton very justly observes, " istud homicidium si fit ex livore, vel delectatione effundendi "humanum sanguinem, licet juste occidatur iste, tamen oc"cisor peccat mortaliter, propter intentionem corruptam.” And farther, 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. 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 assises, and try prisoners; having very strong objections to the legality of the usurper's commission1: 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 requisition (c) 1 Hal. P. C. 497. 1 Hal. P. C. 497. (d) Fol. 120. (e) 1 Hawk. P. C. 70. [ 179 ] 129 or for the advancement of justice, (as 1 requisition it is, that justifies the homicide. If another person doth it of his own head, it is held to be murder: even though it be the judge himself. It must farther 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 licence 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) cannot legally order even a peer to be beheaded* (83). But this doctrine will be more fully considered in a subsequent chapter. AGAIN: in some cases homicide is justifiable, rather by the permission, 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 vigour; or, in such instances where it is committed for the prevention of some atrocious crime, which cannot otherwise be avoided. 2. HOMICIDES, committed for the advancement of public by an officer, endea justice, are: 1. Where an officer, in the execution of his of fice, either in a civil or criminal case, kills a person that assaults and resists him '(84). 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted; and, in the endeavour to take him, kills him". This is similar to the old Gothic constitutions, which (Stiernhook informs us") "furem, si aliter capi non posset, occidere per"mittunt." 3. In case of a riot, or rebellious assembly, the officers endeavouring 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 gaol, or going to gaol, assault the gaoler or officer, and he in his defence kills any of them, it is justifiable, for the sake of preventing an escape P. 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 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 favour of the truth 9, [180] tion of any forcible or atrocious crime; 3. In the next place, such homicide, as is committed for or for the preven 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 130 (84) But if the officer, in the him no protection in that exexecution of his office, exceed his authority, the law gives cess *. *Fust. 319. 1 East, P. C. 320, |