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[in time of war between two independent nations, to flee from an enemy, yet between two fellow-subjects the law countenances no such point of honour: because the sovereign and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves (c). In this the civil law also agrees with ours, or perhaps goes rather farther,—" qui cum aliter tueri se non possunt, damni culpam dederint, innoxii sunt”(d). The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch or other impediment, or as far as the fierceness of the assault will permit him (e); for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm, and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice, as well as of the municipal law (f ).
And, as the manner of the defence, so is also the time to be considered; for if the person assaulted does not fall upon the aggressor till the fray is over, or when he is running away, this is revenge and not defence. Neither, under the colour of self-defence, will the law permit a man to screen himself from the guilt of deliberate murder; for if two persons, A. and B., agree to fight a duel, and A. gives the first onset, and B. retreats as far as he safely can, and then kills A.; this is murder, because of the previous malice and concerted design (9). And if A., upon a sudden quarrel, assaults B. first, and upon B.'s returning the assault, A. really and bonâ fide flies; and, being driven to the wall, turns again upon B. and kills him : this may be se defendendo according to some of our writers (R), though others (i) have thought this opinion too favourable, inasmuch as the necessity, to which he is at last reduced, originally arose from his own fault.
(c) i Hale, P. C. 481.
(9) 1 Hale, P. C. 479.
[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(k).]
Excusable homicide, in both the species here described, was formerly considered as involving in it some degree of legal blame or punishment; and as distinguishable, in this respect, from that which was justifiable. In the case of misadventure the law 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 (1). [And as to the necessity which excuses a man who kills another in a sudden fray se defendendo, Lord Bacon entitles it necessitas culpabilis (m). For it was always understood, (as before remarked,) that the quarrel or assault arose from some unknown wrong, or some provocation in word or deed; and since in quarrels both parties may be, and usually are, in some fault-and as it scarce can be tried who was originally in the wrong—the law would not hold the survivor entirely guiltless. The law besides might have a further view, to make the crime of homicide more odious, and to caution men how they venture to kill another upon their own private judgment ; by ordaining that he who slays his neighbour, without an express warrant from the law so to do, shall in no case be absolutely free from guilt.
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 Mosaical law appointed certain cities of refuge for him who killed his neighbour unawares :
as if a (k) 1 Hale, P. C. 484.
(m) Elem. c. 5. (1) Hawk. P. C. b. 1, c. 28, s. 24.
[“ goeth into the wood with his neighbour to hew wood, " and his hand fetches a stroke with his 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” (n). 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,“ adnotatione principis :" otherwise the death of a man, however committed, was in some degree punishable (o). Among the Greeks, homicide by misfortune was expiated by voluntary banishment for a year (p). 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 (2); and formerly in France, no person was 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 (r).
The penalty for an excusable homicide inflicted by our laws, is said by Sir Edward Coke to have been antiently no less than death (8); which, however, is with reason denied by later and more accurate writers (t). It seems rather to have consisted in a forfeiture ; some say of all the goods and chattels, others only of part of them; by way of fine or weregild (u). Which was probably disposed of, (as in France,) in pios usus, according to the humane
ing his playfellow,-
(2) Stiern. de Jure Goth. l. 3,
(n) Numb. xxxv. and Deut. xix. (0) Cod. 9, 16, 5.
(P) Plato de Leg. 1. 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 country for casually kill
(r) 4 BI. Com. 188, cites De Morney on the Digest.
(8) 2 Inst. 148, 315.
(t) i Hale, P. C. 425; Hawk. P. C. b. 1, c. 29, s. 21; Fost. 282.
(u) Fost. 287.
(superstition of the times, for the benefit of his soul who was 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 the same (x).] And in later times, to prevent this expense, in cases where the death notoriously happened by misadventure or in self-defence, the judges usually directed a general verdict of acquittal(y). Afterwards, by statute 9 Geo. IV. c. 31, s. 10, it was provided, that no punishment or forfeiture should be thenceforth incurred by any person who should kill another by misfortune or in his own defence, or in any other manner without felony; and though this provision was afterwards repealed, a clause to the same effect is inserted in 24 & 25 Vict. c. 100, the statute by which offences against the person are now regulated (z). So that all practical distinction between justifiable and excusable homicide is, under our present law, wholly done away.
3. [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 coun
(x) Fost. 283; Hawk. P. C. b. 2, c. 37, s. 2.
(y) Fost. 288; 4 BI. Com. 188 ;
and see Christian's note at that place.
(x) See 24 & 25 Vict. c. 100,
[tenanced by the civil law(a), yet was punished, by the Athenian law, with cutting off the hand which did the desperate deed (6). The law of England, also, wisely and religiously considers, that no man hath 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 invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the sovereign, who hath an interest in the preservation of all his subjects : our law has 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 (c). A felo de se, therefore, is he that deliberately puts an end to his own existence; and he also is so considered, who, maliciously attempting to kill another occasions his own death : as where a man shoots at another, and the gun bursts and kills himself(d). But if a man is killed at his own request by the hand of another, the former is not deemed in law a felo de se, though the latter is a murderer (e). In homicide committed on one's self, the party must be of years of dis
(a) "Si quis impatientia doloris, either before or after the factaut tadio ritæ, aut morbo, aut as stated sup., p. 43 — is made furore, aut pudore, mori maluit, liable to be tried and convicted non animadrertatur in cum." -Ff, whether the principal felon shall or 49, 16, 6.
shall not be amenable to justice. It (6) Pott. Antiq. b. 1, c. 26. may be observed here, that if two
(c) 4 Bl. Com. p. 189; Keylw. persons mutually agree to commit 136. Notwithstanding this opinion suicide together, and accordingly of Blackstone, it was afterwards ad- take poison or the like together, judged that such accessory could and only one dies, the survivor is not be tried for murder, as his prin- guilty of murder. (R. v. Dyson, cipal could not be tried. (See R. x. R. & R. 523; R. v. Alison, 8 C. & Russell, 1 Moo. C. C. R. 356; R. v. P. 418.) Laddington, 9 C. & P. 79.) But (d) Hawk. P. C. b. 1, c. 27, s. 4. by recent statutes, and now by 24 & (c) Ibid. s. 6. 25 Vict. c. 94, s. 2, an accessory