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of law, for the
justice, or, the prevention of crime,
there must be an apparent necessity;
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 (). But this doctrine will be more fully considered
in a subsequent chapter. or, by permission Again ; in some cases homicide is justifiable, rather by the advancement of 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. for which also 2. Homicide, committed for the advancement of public
justice, are; 1. Where an officer, in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him (1). 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 (m). This is similar to the old Gothịc constitutions, which,
Stiernhook informs us (n), “ furem, si aliter capi non posset, [*180] occidere *permittunt (3).” 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 excape (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 and 4 W. and M. c. 10 (4). 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
(3) A thief, if he can be apprehended by no other means, may be put to death.
(4) 21 Edw. I. st. 2, is repealed by
7 & 8 Geo. IV. c. 27, and 3 & 4 W. & M. c. 10, by 16 Geo. III. c. 30, which latter is also repealed by 7 & 8 Geo. IV. c. 27.
stealers could not but escape, unless such homicide were committed: otherwise, without such absolute nécessity, it is not justifiable (5). 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 (g) (6).
3. In the next place, such homicide as is committed for and they must the prevention of any forcible and atrocious crime, is justi- crimes acco fiable by the law of nature (r); and also by the law of force, as robEngland, as it stood so early as the time of Bracton (s), and burglary. as it is since declared by statute 24 Hen. VIII. c. 5 (7). 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 (8). So the Jewish law, which punished no theft with
(5) If a person commits felony, and Alies, or resists those who attempt to apprehend him, or is indicted of felony, and flies, or is arrested by warrant or process of law, and escapes, or is being conveyed to prison, and escapes ; in any of these cases, if he cannot be taken alive, and is killed in the act of resistance, the homicide is justifiable; 1 Hale, P. C. 489; 1 East, P. C. 298. So, if an officer has a warrant against A., by name, for felony, or if A. is indicted for felony, or if the hue and cry is levied against him, by name; in any of these cases, if A., though innocent, flies or resists, and is killed by the offi. cer or any other person aiding him, during flight or resistance, the person so killing him is indemnified; Fost. 318; 1 East, P. C. 300. And the officer, it seems, would be equally indemnified, though he had no warrant, if he acted on a charge of felony, and on reason
able suspicion, even though it should
(6) The trial by battle is abolished
(7) Repealed by 9 Geo. IV. c. 31, $ 10 of which enacts, that no punish, ment 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
(8) A person set to watch a yard or garden, is not justified in shooting any one who comes into it, even in the right, though he should see the party go into his master's hen-roost; but if from the conduct of the party he has fair grounds for believing his own life in actual and immediate danger, he is justified in shooting him ; Rex v.
death, makes homicide only justifiable in case of nocturnal housebreaking; if a thief be found breaking up, and 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 (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 (z), 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 : but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other (6). 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.
Scully, I C. & P. 319. If the ser. vant of the owner of property find a party actually committing an offence against the 7 & 8 Geo. IV. c. 29, (the Larceny Act, see post, cap. 17,) and apprehends him under section 63 of that Act, and while taking him to a magistrate, such party kills him, this is murder ; but if the servant either did
not see him in the actual commission of the offence, or be taking him to any other place than before a magistrate, it is not murder; Rer v. Curran, 3 C. & P. 397. If a man be found attempting to commit a felony in the night, anyone may apprehend and detain him, until he can be carried before a magistrate ; Rerv. Hunt, 1 R. & M.C.C. 93.
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 ten- [*182] der of the public 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.
II. Excusable homicide is of two sorts ; either per infor- II. Excusable. tunium, 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 by misadvenman, doing a lawful act, without any intention of hurt, unfor- formance of a tunately 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 was 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);
ture in the per
(e) i Hal. P. C. 473, 474.
(c) Ess. on Gov. p. 2, c. 5. (d) I Hawk. P. C. 73, 74.
for the act of immoderate correction is unlawful. *Thus by an edict of the emperor Constantine (), when the rigour 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 accidently 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 (9)."
But to proceed. A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act; and so are boxing and swordplaying, 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 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) (10). And in general, if death ensues in consequence of an idle, dangerous, and unlawful
(9) If he exercises his own rights wantonly or immoderately, then he is guilty of homicide.
(10) If a person is driving a cart at an unusually rapid pace, and drives over another, and kills him, he is guilty of manslaughter, though he called to the deceased to get out of the way, and he might have done so, if he had not been in a state of intoxication; Rer v. Walker, 1 C. & P. 320. But an indictment formanslaughter, charging that the prisoner “ did compel and
force” A. & B. who were working at a certain windlass, to leave the said windlass, and by such compulsion and force, &c., the deceased was killed, is not supported by evidence that the prisoner was working the windlass with A. & B. ; and that by his going away they were not strong enough to work it, in consequence of which they let it go; as the words “compel and force” must be taken to mean active force; Rex v. Lloyd, I C. & P. 301.