"Willielmus redeundo de eodem equo per infortunium cecidit, & cum “eodem equo per amicos fuos femivivus deductus fuit ad hofpitium "prædicti magiftri fui apud Fleetftreet in fuburbio London, [421]. " & ibidem languidus vixit ufque occafum folis, quo tempore obiit ex cafu prædicto; & quod prædictus equus tempore cafûs prædicti per aliquem vel aliquam non fuit perterritus, per quod "babuit occafionem recalcitrandi.

ct

This inquifition being removed into the chancery by Certiorari, thereupon it was adjudged coram rege & concilio, quod equus prædictus tanquam deodand' regi in hoc cafu non debet adjudicari, and thereupon a writ iffues to the fheriffs and coroners of London reciting the inquifition: "Jamque dictâ certificatione coram nobis & concilio noftro infpecta & plenius examinata, nobis & dicto concilio noftro videtur, « quòd equus prædictus tanquam deodand' nobis in hoc cafu non "debet adjudicari," commands the sheriff and coroners, " quod ex"actionem, quam Johanni Bleburgh (the mafter of the horse) vel plegiis, vel manucaptoribus fuis in hâc parte pro equo prædicto vel "ejus pretio nobis tanquam deodand' reddend' feciftis, supersedeatis " omnino & diftrictionem in hâc parte factam fine dilatione relaxetis.” T. R. apud Guildford 18 Novemb.

may

Which judgment is of greater weight, than any above cited, and be a great guide in cafes of this nature, and therefore I have cited it at large: 1. It is a refolution fubfequent to all thofe judgments, that are above-mentiond, for the laft of them is the 3 E. 3. and this is 5 E. 3. Again, 2. It is a folemn judgment given in chancery coram rege & concilio upon great examination, and the whole cafe ftated in the inquifition, and every man knows, that understands any thing of records of those times, that coram rege & concilio was the king's legal council, namely the chancellor, treasurer, keeper of the privy feal, juftices of the one bench and the other, chancellor and barons of the Exchequer thefe ufually met in chancery upon fuch occafions under the style of concilium.

3. It is a judgment given by the king and council against the forfeiture, the whole cafe appearing upon the inquifition, which is of greater moment, than a judgment given for the king, because given by himself and his officers against his own intereft.

2. Now touching deodands of things not moveable. [422] If a man be drowned in a pit, tho the pit cannot be forfeited, the coroner may charge the township to ftop the pit, and make

entry

entry thereof in his rolls; and if it be not done before the next eyre or goal-delivery, the township fhall be amerced. 8 E. 2. Coron. 416.

If a man falls from an hay-rick, whereby he dies, it is faid (nota, not adjudged) that it fhall be a forfeit. 3 E. 3. Coron. 348.

If a man be getting up a cart by the wheel to gather plums, and neither the cart nor horfes moving, the man falls and dies, neither the cart nor horfes are forfeit, but only the wheel. 8 E. 2. Coron. 409.

It feems, that if a man be under the age of fourteen years, and falls from a cart or horfe, it shall not be a deodand, because he was not of difcretion to look to himfelf; but if a horfe, bull, or the like kills him, or if a cart runs over him, there it fhall be a deodand, 8 E. 2. Coran. 389. Stamford's P. Cor. 21. a. Co. P. C. p. 57. for there it fhall be imputed to the neglect of the keeper of the goods, that did the mifchief, and fo it is, if a tree falls upon one within the age of difcretion, it is a deodand.

Touching deodands in fhips or boats, thefe things are obfervable:

1. If a ship or boat be laden with merchandize, tho it falls out that a man be killed by the motion of the fhip or boat, yet the merchandize are no deodand, tho it be in the freth water; but if any particular merchandize falls upon a party, whereby he dies, that particular merchandize shall be a deodand, and not the fhip. Britton, cap. 1. de office de coroner, §. 13 & 14.

2. If a fhip or vessel be failing upon the fea, and a perfon falls out of the fhip and is drowned, the fhip is no deodand.

[423]

By the antient conftitutions of the admiralty it feems, that if a man were drowned upon the fea by falling off from the fhip under fail, there was no deodand due, nor if he died by the fall of a mast or failyard, or otherwife; but indeed in the articles of inquiry in the court of admiralty, mentiond in the black book of the admiralty, one of the articles is to inquire of them, that take any deodands, befides the admiral, of any gold, filver or jewels found upon any man flain upon the fea, drowned in the fea, or flain with a maft in the fhip, or with the yard of the fhip, or with any other thing, which is the cause of the death of any man, that in such case appurtient àl admiral per prendre & adminiftre per l'alme, ce queft mort, le moiety, & l'autre moiety a doner al feme celui, queft mort, fes infans, freres au foers, fil ad aucunes: but certainly this never obtaind, for without queftion the goods of the deceased were no deodands, but only the goods that moved to his death.

Rot.

Rot. Par. 51 E. 3. n. 73. The commons pray, Que come il ad un cuftome use parmy ceft realme, que fi afcun home ou garfon efchie hors de afcun niefe, batelle, ou autre veffel en le mere, haven, ou autre ewe, Joit periffe, le dit veffel ad eftre forfeite au roy, ou autres feigneurs de franchifes, to the great prejudice of mariners and shipping, and therefore pray, que nul neife, batell, ne autre veffel foit forfeitable deformes pur le caufe avant dit.

Refp. En le mere ne doit pas deodand eftre ajugge, mes quant al ewe fresh le roy ent ferra fa grace, ou lui pleyft.

The like petitions were renewed Rot. Par. 1 H. 4. n. 154. 1 H. 5. n. 35. 14 H. 6. n. 26. but they obtaind no other answer, than that the law be observed.

Yet that answer in 51 E. 3. is a fufficient declaration, that no deodand is to be upon fuch a death happening upon the fea, and with this difference touching the forfeiture of a fhip or other thing, as deodands in mari & in aquâ dulci, agrees Bract. Lib. III. cap. 5. p. 122. and cap. 17. p. 136. in fine, viz. that de fubmerfis in aquá dulci batelli, de quibus tales fubmerfi fuerunt, apprecientur, fed non in mari, nec fùnt deodanda ex infortunio in mari.

And with the fame agrees Fleta, Lib. I. cap. 25. §. 9. de fubmerfis, fi de molendino ceciderit vel carecta vel de batello, quamvis carcatis, dum tamen in aquá dulci, fecus quam in falfa, and goes farther, but too far, viz. that the veffel with its lading, and the cart with its lading, and the mill, with all that is moveable in it, are deodands.

But now, what fhall be faid the fea or falt water?

[424] My lord Coke, ubi fupra, viz. p. 58. faith, and that truly, the arm of the fea is included herein; and by the book of 22 Affize, pl. 93. fo far as the fea flows and reflows is an arm of the sea. And thus far of deodands.

I fhall only add this one thing more relating to the coroner's office touching those, that come to a violent death de fubito mortuis: if the township bury the body before the coroner be fent for, the township fhall be amerced; and if the coroner comes not to make his inquiry upon notice given, he shall be fined in eyre, or in the king's bench, or before the juftices of goal-delivery.

See Fofter. 265. 265. 267. 287. 288. Deodand. Hawk. P. C. ch. 26. in the bell-rope, whether the bell

༥

Blackf. Com. Lib. I. ch. viii, p. 300. Burn. Tit. Quære, if a man ringing a Church-bell be hanged be forfeited as a deodand, 1 Lev. 136.

CHAP.

CHAP. XXXIII.

Of homicide, and it's. feveral kinds, and firft of those confiderations that are applicable, as well to murder as manflaughter.

AVING dispatched the bufinefs of fuicidium or felf-murder, and per infortunium fimplex, I come now to confider of homicide, as it relates to others.

And this is of three kinds: 1. Purely voluntary, viz. murder and manslaughter. 2. Purely involuntary, as that other kind of homicide per infortunium. 3. Mixt, partly voluntary, and partly involuntary, or in a kind neceffary, and this again of two kinds, viz. inducing a forfeiture, as fe defendendo, or not inducing a forfeiture, as, 1. In defenfe of a man's house. 2. Defense of his perfon against an affault

in viâ regiâ. 3. In advancement or execution of justice, [425]

and according to this diftribution I shall proceed.

I fhall begin with thofe matters confiderable, which are applicable as well to homicide, as to murder.

Murder is a killing of a man ex malitiâ præcogitata; homicide is killing a man without forethought malice.

It is a mistake in those, that think, that before the ftatute of Marlebridge, cap. 26. all killing of a man, tho per infortunium or fe defendendo, was murder, for the ftatute faith, that murdrum de cætero non adjudicetur coram jufticiariis, ubi infortunium tantummodo adjudicatur, fed locum habet murdrum de interfectis per feloniam tantum, & non aliter, and therefore they thought that before this ftatute a man should be hanged for killing another in his own defense. 21 E. 3. 17. b. (a).

But the truth is, murdrum in this cafe was but an amercement, that was antiently impofed upon a township, where the death of a man happened (b); and this appears by many hundred old charters of the

(a) See alfo 2 Co. Inftit. p. 148. who is of that opinion.

(6). This is fo plain, that it is matter of furprize, that any fhould mistake it; the word murdrum ufually fignifying a fecret killing of another, fo that the murderer, was not known, for if the murderer was known, it was not in this fenfe murder; as if the murderer was taken, & judicium fuftinuerit, nullum erit murdrum, quia convincitur felonia, or if the murdered perfon

VOL. I.

Bb

lived for fome time after his wounds, it was no murder because he might difcover the murderers, the meaning of which is not, that the offender would not in thofe cafes be liable to be indicted and punished for murder, but that the vill or township would not in fuch cafes be liable to any amercia

ment.

Bra Lib. III. de corona, cap. 15. p. 135. a. Wilk. Leg. Anglo Sax. p. 280. vide jupra p. 39. in notis, vide poftca cap. 35. See alfo Kelynge 121.

kings

kings of England, especially to bifhops and monafteries, whereby it was granted, that they and their poffeffions fhould be quit de murdro & latrocinio among divers other immunities, whereby we must not think that they had power granted them to commit murder or theft, but they were thereby acquitted of those common amercements, ufually in thofe antient times impofed in eyre upon vills for murder and theft committed there.

To make up the crime of homicide or murder there must be these three concurring circumstances.

I. The party must be killed, antiently indeed a barbarous affault with an intent to murder, fo that the party was left for dead, but yet recovered again, was adjudged murder and petit treafon, 15 [426] E. 2. Coron. 383. but that holds not now, for the ftroke without the death of the party ftricken, nor the death without the ftroke or other violence makes not the homicide or murder, for the death confummates the crime.

It remains therefore to be confidered, to what intents the offenfe of murder or manflaughter relates to the firoke or other caufe of the death, and to what purposes it relates to the death only.

If a man gives another a mortal stroke, and he lives a month, two or three, or more, and die within the year and day, the title of the lord by efchete to avoid mcfne incumbrances relates to the stroke given, and not only to the death. Plowd. Com. 263. Dame Hale's cafe.

If a man give another a mortal ftroke, and he dies thereof within a year and a day, but mefne between the ftroke and the death there comes a general pardon, whereby all mifdemeanors are pardoned, this doth pardon the felony confequentially, because the act, that is the offenfe, is pardoned, tho it be not a felony till the party die. Ibid. 401. Cole's cafe.

If a mortal stroke be given on the high fea, and the party comes to land in England and die, the admiral shall not have jurisdiction in this cafe to try the felon, because the death that confummated the felony, happened upon the land, nor the common law shall not try him, because the ftroke, that made the offenfe, was not infra corpus comitatûs, 5 Co. Rep. 106. b. Sir Henry Conftable's cafe, 2 Co. Rep. 93. a. Bingham's cafe, Co. P. C. p. 48. and Lacie's cafe 25 Eliz. cited there to that purpofe; de quo alibi.

At common law, if a man had been ftricken in one county and died in another, it was doubtful whether he were indictable or triable in

either,