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panied 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, arson, murder, or the like (z). [So the Jewish law, which punished no theft with 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" (a).
At Athens, if any theft was committed by night, it was lawful to kill the criminal, if taken in the fact (6) 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 weapons (C): 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(d): and so also, according to Selden, stood the law in the Jewish republic (e). The English law likewise justifies a woman killing one who attempts to ravish her (f); 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 (9). And no doubt the forcibly attempting a crime of a still more detestable nature, may be equally resisted by the death of the unnatural aggressor (h).
(2) 1 Hale, P. C. 488; 1 East, inferentem occidit, dimittenP. C. c. 5, s. 44; Hawk. P. C. b. 1, “ dum.”-Ff. 48, 8, 1. c. 28, s. 23; Fost. 274; see also 24 (e) Do Legibus Hebræor, I. iv. Hen. 8, c. 5, cited sup. p. 50, n. (y). (a) Exod. xxii. 2.
(1) Bac. Elem. 34; Hawk. P. C. (6) Potter, Antiq. b. 1, c. 24. b. 1, c. 28, s. 21 ; Fost. ubi sup.
(c) Cic. pro Milone, 3; Ff. 9, (9) i Hale, P. C. 485, 486. 2, 4,
(h) Blackstone here proceeds (vol. (d) “ Divus Hadrianus rescrip- iv. p. 181) to give his opinion of the “ sit eum qui stuprum sibi vel suis principle upon which homicide be
[Fourthly, there is one species of justifiable homicide where the party slain is equally innocent as he who occasions his death; the justification arising 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 (k). To this head belongs 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 was drowned (?).
2. Excusable homicide is of two sorts, either per
infortunium, by misadventure; or se defendendo, upon a sudden affray.
Homicide per infortunium, is where a man, doing a lawful act without any intention of hurt, unfortunately 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 is shooting at a mark, and undesignedly kills a man (m): for the act is lawful, and the effect is
comes justifiable, when for the prevention of crime. He says, 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 endeasi voured to be committed by force, “ it is lawful to repel that force by “ the death of the party attempting.” And at the same time he combats the doctrine of Locke's Essay on Government, p. 2, c. 5, “ That all “ manner of force withont right,
upon a man's person, puts him in
a state of war with the aggressor; " and, of consequence, being in such “ a state of war, he may lawfully “ kill him that puts him under this “ unnatural restraint.” We may be
allowed, however, to question the soundness of the former as well as the latter opinion. If the former be correct, it will follow that, as rape (for example) has now ceased to be capital, the justification of homicide for the prevention of rape is also taken away; but there can be no donbt that it remains in full force.
(k) Blackstone says excusable (vol. iv. p. 186); but it seems clear that this is a case of justifiable and not merely excusable homicide; and it is so ranked by Hawkins, P. C. b. 1, c. 28, s. 26.
(1) Elem. c. 5. See also Hawk. P. C. b. 1, c. 28, s. 26.
(m) Hawk. P. C. b. 1, c. 29, ss.
(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; for the act of immoderate correction is unlawful(n). 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 accidentally 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
But to proceed. A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act; and so are boxing and sword playing, the succeeding amusements of their posterity; and therefore if a knight in the former case, or a gladiator in the latter, be killed, such killing is manslaughter and felony (p). 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 dangerous consequence (7).
(n) 1 Hale, P. C. 473,474; Hawk. like manner, as by the laws both of P. C. b. 1, c. 29, s. 5.
Athens and Rome," he who killed () Cod. 1. lx. t. 14.
“ another in the pancratium, or (P) Blackstone adds (vol. iv. p. “public games authorized or per183) that “if the sovereign com- “mitted by the state, was not held "mand or permit such diversion, it “ to be guilty of homicide.” (Plato " is said to be only misadventure; de Leg. 1. vii.; Ff. 9, 2, 7.) “ for then the act is lawful.” (9) Hawk. P. C. b. 1, c. 29, s. 3; (Hawk. P. C. b. 1, c. 29, s. 8.) In Ward's case, 1 East, P. C. 270.
[ [And in general, if death ensues in consequence of a dangerous, idle, and unlawful sport, as shooting or casting stones in a town, or the barbarous diversion of cockthrowing,-in these and similar cases the slayer is guilty of manslaughter, and not misadventure only; for these are unlawful acts (r).
As for homicide se defendendo, upon a sudden affray, —this is also excusable, rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned, which is calculated to hinder the perpetration of an atrocious crime, and where the slayer is himself free from all blame (s); which is not only a matter of excuse, but of justification. But the selfdefence of which we are now speaking, is that whereby a man may protect himself from an assault or the like, in the course of a sudden brawl or quarrel, by killing him who assaults him: in which latter case the law presumes both parties to be in some degree in fault (t). And this is one instance of what the law expresses by the word chance medley; or, as some chose rather to write it, chaud medley : the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion; both of them of pretty much the same import: but the former is, in common speech, too often erroneously applied to any manner of homicide by misadventure; whereas it appears by the statute 24 Hen. VIII. c. 5, and our antient books, that it is properly applied to such killing as happens upon a sudden rencounter (u). This right of
(r) 1 Hale, P. C. 472; Fost. 275; Hawk. P. C. b. 1, c. 30, s. 1.
(8) Hawk. P. C. b. 1, c. 28, s. 24.
(t) Ibid. The slayer is however no longer punishable by law, though it was formerly otherwise. Vide post, p. 59.
(u) Blackstone (vol. iv. p. 184) defines chance medley, to be such
killing as happens in self-defence in the course of a sudden brawl. But it is clear that the term equally applies, though the killing in the course of a brawl shall be such as to amount to manslaughter. See stat. 24 Hen. 8, c. 5; Keyl. 67; 3 Inst. 55, 59; Hawk. P. C. b. 1, c. 30, s. 1; Fost.
[natural defence does not imply a right of attacking ; for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence but in sudden and violent cases, when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible, or at least probable, means of escaping from his assailant.
It is frequently difficult to distinguish this species of homicide in self-defence, upon sudden affray, from that of manslaughter in the proper legal sense of the word (w). But the true criterion between them seems to be this: when both parties were actually combating, at the time when the mortal stroke was given, or if the slayer was not at that time in immediate danger of death, the slayer is guilty of manslaughter (y): but if the slayer had not begun to fight, or having begun, declined, or endeavoured to decline, any further struggle, and afterwards, being closely pressed by his antagonist, killed him to avoid his own destruction, this is homicide excusable by selfdefence (z). For which reason the law requires, that the person who kills another in his own defence, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he gives the mortal stroke (a); and that, not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood (6). And though it may be cowardice,
(x) 3 Inst. 55. (y) Fost. 277. (z) Ibid.
(a) Blackstone says (vol. iv. p. 185), " before he turns upon his assailant.” But though a person retreating to the wall should give several wounds in the course of his retreat, yet if he gives no mortal one
till he gets thither, it is homicide se defendendo only. (1 Hale, P. C. 479; Hawk. P. C.b. 1, c. 29, s. 15.)
(6) If a man strike another upon malice prepense, and then fly to the wall, and there kill him in his own defence, he is guilty of murder. (Hawk. P. C. b. 1, c. 29, s. 17.)