too favourable; inasmuch as the necessity, to which he is at last reduced, originally arose from his own fault. Under this excuse 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. There is one species of homicide, se defendendo, where the party 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," where two persons, being shipwrecked, and getting on the same. plank, but finding it not able to save them both, one of them thrust 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, formerly agreed; and those were in their blame and punishment. For the law set so high a value upon the life of a man that it always intended some misbehaviour in the person who took it away, unless by the command or express permission of the law. In the case of misadventure it presumed negligence, or at least a want of sufficient caution in him who was so unfortunate as to commit it, who therefore was not altogether faultless. And as to the necessity which excuses a man who kills another se defendendo, Lord Bacon " entitles it necessitas culpabilis, and thereby distinguishes it from the former necessity of killing a thief or a malefactor. For the law intended 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 could be tried who was originally in the wrong, the law would not hold the survivor entirely guiltless. Elem. c. 5; 1 Hawk. P. C. 73. 1 Hawk. P. C. 72. u Elem. c. 5. 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 might have a farther view, to make the crime of homicide more odious, and to caution men how they ventured to kill another upon their own private judgment, by ordaining, that he who slew his neighbour without an express warrant from the law so to do, should in no case be absolutely free from guilt. 66 66 Nor was 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 Mosaic law appointed certain cities of refuge for him "who killed his neighbour unawares: "as if a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down a tree, and the head slippeth from the helve, and lighteth upon "his neighbour that he die, he shall flee unto one of these 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 casual homicide was excused by the indulgence of the emperor, signed with his own sign manual, "annotatione principis:" otherwise the death of a man, however committed, was in some degree punishable. Among the Greeks" homicide by misfortune. was expiated by voluntary banishment for a year. In Saxony a fine was paid to the kindred of the slain, which also, among the western Goths, was little inferior to that of voluntary homicide;" and in France' no person was formerly 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. V The penalty inflicted by our laws is said by Sir Edward Coke to have been anciently no less than death, which, however, is with reason denied by later and more accurate writers. It seems rather to have consisted in a forfeiture, some say of all the goods and ▾ Cod. 9, 16, 5. w Plato, de Leg. lib. 9. 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 Stiernh. de Jure Goth. 1. 3, c. 4. chattels, others of only part of them, by way of fine or weregild: 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 became more considerable, the delinquent had, as early as our records will reach, a pardon and writ of restitution of his goods as a matter of course and right, only paying for suing out of the same. To prevent this expense in cases where the death had notoriously happened by misadventure, or in self-defence, the judges permitted, if not directed, a general verdict of acquittal; and finally it was enacted, that no punishment or forfeiture should thereafter be incurred by any person who killed another by misfortune, or in his own defence, or in any manner without felony.' III. Felonious homicide is an act of a 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 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," yet was punished by the Athenian law with cutting off the hand which committed the desperate deed. And also the law of England wisely and religiously considers that no man has 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 evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for, the other temporal, against the sovereign, who has 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. A felo de se therefore is he that a 9 Geo. IV. c. 31, s. 10; 24 & 25 Vict. c. 100, s. 7. b Ff. 49, 16, 6. Pot. Antiq. b. 1, c. 26. a Keilw. 136. Rex v. Dyson, Russ. & Ry. C. C. 523; Rex v. Alison, 8 C & P. 418. 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. 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 coroners' 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 melancholy 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, 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. 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 'they act by prescribing' an ignominious 'interment by night, and without the rites of Christian burial.' On the latter 'they acted until recently' by a forfeiture of all his goods and chattels to the crown; 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. But' the letter of the law herein bordered a little upon severity, although it was' some alleviation that the power of mitigation was left in the breast of the sovereign, who upon this, as on all other occasions, was by the oath of his office to execute judgment in mercy; and accordingly it has now been enacted that no verdict of felo de se shall cause any forfeiture or escheat.' The other species of criminal homicide is that of killing another man. But 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 e 'See on this subject the statute 4 Geo. IV. c. 52, which prohibited the previous custom of burying in the high way and of driving a stake through the body.' 33 & 34 Vict. c. 23, s. 1. the sudden heat of the passions; murder from the wickedness of the heart. 1. Manslaughter is therefore defined the unlawful killing of 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."s 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: 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. 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. 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," as likewise by the Roman civil law, if the adulterer was found in the husband's own house,' and also among the ancient Goths; yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is manslaughter. It is, however, the lowest degree of it; and therefore in such a case the court directed the burning in the hand 'which was formerly a part of the punishment for manslaughter,' to be gently inflicted, because there could not be a greater provocation.* Manslaughter therefore on a sudden See Stiernh. de Jure Goth. 1. 3, c. 4. h Plutarch. in Vit. Solon. iFf. 48, 5, 24. J Stiernh. de Jure Goth. 1. 3, c. 2. Manning's Case, Sir T. Raym. 212. 'See also Reg. v. Fisher, 8 C. & P. 182.' |