exercentur, alius alium occiderit, cessat Aquileia (Lex), quia gloriæ causâ et virtutis, non injuriæ gratia, videtur damnum datum. 117. Homicide in Self-defence, se defendendo, upon a sudden affray, is excusable rather than justifiable by the English Law. When a man protects himself from assault in an unpremeditated quarrel, and kills him who assaults him, it is termed by the Law chance-medley; (or, as some choose to write it, chaud medley ;) which signifies a casual affray, (or else an affray in the heat of blood, chaude meslée). This term is rightly applied, when the slayer engages in no struggle, except what is necessary for self-defense. 118. When Homicide results from sudden heat of passion, arising naturally from provocation, without an intention previously formed, it is in English Law termed Manslaughter; as when one person kills another in a sudden quarrel. For the Law pays, say the Commentators*, such regard to human frailty, as not to put hasty acts, and deliberate acts, on the same footing with regard to guilt. But in cases where homicide is committed upon provocation, if there be a sufficient cooling time, for passion to subside, and reason to interpose; and if the person so provoked afterwards kill the other, this is deliberate revenge, and not heat of blood, and amounts to Murder. 119. Murder is Homicide committed with previous intention, which is termed Malice prepense, or Malice aforethought. This is the most atrocious of Crimes. 120. Homicide is justifiable by the Law of England when it is committed for the prevention of any forcible and atrocious crime. If a person attempts robbery or murder, or endeavours to break open a house in the night-time, and is killed in such attempt, the slayer is acquitted †. The * Blackstone, iv. 191. + By the more modern decisions of law, the distinction of night and Jewish Law had the like rules*: If a thief be found breaking up, and be smitten that he die, there shall no blood be shed for him. So also in the Roman Law: the Law of the Twelve Tables was, Si nox (noctu) furtum faxit, sim (si eum) aliquis occisit (occiderit) juræ cœsus esto. But there was, in this case, to be no attempt at secrecy on the part of the slayer; but, on the contrary, a loud appeal to any one within hearing; Lex XII. Tabularem furem noctu deprehensum occidere permittit, ut tamen id ipsum clamore testificatur. In the day-time, the person attacked by a robber is allowed to put him to death if he cannot otherwise defend himself: but we are not, by the English law, allowed to kill any one in order to prevent a crime, if the crime be unaccompanied by violence. In this case, the law requires us to cause the offender to be legally apprehended and tried. So also the Jewish law, in the place already quoted‡: If the sun be risen upon him, there shall be blood shed for him, for he should make full restitution. And the Roman Law is similar§: Interdiu deprehensum ita (lex) permittit occidere, si is se telo defendat, ut tamen æque cum clamore testificetur. And again; Sed et si quemcunque alium ferro se petentem quis occiderit, non videbitur injuriâ occidisse; et si metu quis mortis furem occiderit. Sin autem cum possit adprehendere maluit occidere, magis est ut injuriâ fecisse videatur. day is no longer noticed. The owner is now understood to be entitled to defend his own to the last extremity; subject to the condition of showing that that extremity was requisite for the defense. * Exod. xxii. 2. † Dig. ix. 2. 4. The Law of the Twelve Tables makes slaying a thief detected in the night to be allowable, provided the slayer call aloud on the occasion of the act. Exodus xxii. 3. § Dig. ix. 2, 3. A thief detected by day may be slain if he defend himself with a weapon, and if, as before, the slayer call aloud. And if a man slay him who assaults him with a weapon it is justifiable; and if a man slay a robber, being in fear of his life. But if he was able to apprehend him, and chose rather to slay him, it is not justifiable. 121. The Laws of Solon*, and the proposed Laws of Platot, agree with those already mentioned, in making a wide distinction between the modes of resistance permitted against the nocturnal and the diurnal thief. It has been discussed among Jurists, what is the ground of this difference. The reason which they assign is this: that the Law does not allow a man to be put to death by a private hand, on account of an expected loss for which the law can give redress; but only on account of danger to the person, which may be beyond redress: that therefore by day, when the person attacked can see the extent of his danger, he is justified only to the extent of his danger, and so far as the wrongs are of an irremediable kind: but that by night, when the unknown extent of the danger may lead him to believe it extreme, and when aid and testimony are difficult to obtain, he is justified to the extent of his fear. The Law is willing to accept such justification, because it cannot afford him redress any other way. 122. When a person commits acts of violence against another, having received extreme Provocation, but not being in danger, by the Law of England, the provocation mitigates, but does not justify the offense. The Mitigation is not available, if there have intervened time sufficient for the passions to cool for if that be the case, the Law itself is ready to redress the injury. Hence, when two persons in cold blood meet and fight, any mischief done by one to the other cannot be excused by alleging previous Provocation. And thus, in the case of a Duel, in which the combatants take measures tending to destroy each other's lives, the Law has fixed the crime of Murder on them. 123. A person committing an act of violence may have others who assist or abet him, without their taking the same + Legg. Lib. ix. *Demosth. adv. Timocrat. share in the act which he does himself. He is the Principal, they are the Accessories. And these are distinguished into Accessories before the Fact, as those who urge a man to commit murder, and provide him with arms; and Accessories after the Fact, as those who harbour the murderer, knowing the crime to have been committed. Some distinctions are made in the assignment of punishment to Principals and Accessories: but absence when the crime is committed is requisite to make a man an Accessory. Thus the Seconds in a Duel are guilty of murder as Principals in the Second degree. 124. As we have said, the English Law does not allow Provocation to excuse acts of violence, except when there has been no time for passion to cool; and therefore does not acquit either of the combatants in a Duel on the ground of any provocation which he may have received. Yet the administration of the Law has often been so conducted, that it has seemed to recognize the Challenge as an excuse for the attempted Homicide. This inconsistency, between the letter and the practice of the Law, has, perhaps, in some measure, arisen out of the customs which prevailed in Europe some centuries ago, when Duels were permitted openly by Christian States; and the person who did not seek redress, by such means, against any expression of contempt or menace uttered against him, incurred general blame and contempt as a coward. 125. Among the justifiable acts of violence, we may notice those which the Law not only permits, but authorizes and commands; as the Imprisonment of criminals, and their Punishment by stripes, wounds, maiming, exile, or death. But in such cases, nothing is allowable which the Law does not require. To kill the greatest of malefactors extra-judically, that is, not according to the prescribed course of the administration of the Law, is Murder. Hence, if the judge who condemns, be not lawfully authorized to do so, he is guilty of murder. And the judgment must be executed by the proper Officer, for no one else is authorized by law to do it. The Judge may condemn, but must leave it to the Sheriff or his Deputy to execute the sentence. Even if the Officer alters the manner of execution, as if he beheads one adjudged to be hanged, it is murder. 126. Other cases in which Homicide is justifiable, because committed for the furtherance of the law, are these: when an officer, in the execution of his office, kills a person who resists him :—when prisoners assault the gaoler or officer, trying to escape, and he kills them:--when an assembly of persons (that is twelve, or more) has become riotous, and being required to disperse by the proper magistrates, refuse to do so. But it is added, by the expositors of these laws, that there must be in such cases an apparent necessity on the officer's side in order to justify him. It must appear that the culprit could not be apprehended, the prisoner could not be kept in hold, the riot could not be suppressed, in any other way. 127. There is another class of actions which may assume the aspect of infringements of the Rights of the Person, but which are justified in virtue of the Authority which the Law recognizes as residing in the persons who commit the acts. According to the English Law, the Father has an authority over his Children which entitles him to strike or constrain them, under certain conditions. A Master has a like authority over his Apprentice, and a Schoolmaster over his Scholar. In these cases, it is justifiable to beat or confine the pupil in a moderate degree, in the way of Chastisement or Correction. In cases of voluntary service, the Employer is allowed to exercise constraint over the hired Servant or hired Labourer, in whose services he for the time obtains a Right. Thus, I prohibit my Ser |