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[cretion, 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: or rather, (to express it more correctly,) does not prevent his having a sufficient degree reason to know that his act is wrong; which is necessary to form a legal excuse (f). And therefore it has been laid down that if a lunatic kills himself in a lucid interval,

a he is a felo de se as much as if he were a sane man (g).

[But now the question follows, what punishment can human laws inflict, on one who has withdrawn himself from their reach?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; and this the

(f) Vide sap. p. 28, n. (w). many cases of suicide, in which no

(9) 4 Bl. Com. 190; 1 Hale, P. motive for the act appears, or can C. 412. The views of our most be imagined, such as can be supeminent writers upon criminal law posed to operate upon a mind free agree, in this respect, with Black- from morbid delusion. In these stone. “It is not every melancholy circumstances the practice of juries " or hypochondriac distemper that to return a verdict of insanity, with

denominates a man non compos," out further evidence of unsoundness (says Sir M. Hale, ubi sup.,) " for of mind, does not seem fairly to fall “ there are few who commit this under the censure in the text. In “offence (of suicide) but are under other kinds of murder, also, this “such infirmities; but it must be apparent want of rational motive is "such an alienation of mind that of frequent occurrence; and ought, “ renders them to be madmen or it would seem, to lead to the same “ frantic, or destitute of reason.” conclusion. But the danger of acAnd Hawkins, (b. 1, c. 27, s. 2,) quittal on this ground, without furlays down a similar doctrine ; and ther proof of insanity, is too obvious reprobates the notion, which he says to require remark; and should alhad unaccountably prevailed of late, ways deter a jury from a verdict of that every one who kills himself that description, unless the circummust be non compos. It is to be stances be very strong and peculiar, observed, however, that there are

[law of England formerly did with the greatest severity. It acted on the former by an ignominious burial in the highway, with a stake driven through his body, and without Christian rites of sepulture; on the latter 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 only consequences now are, the deprivation of Christian rites. For by 4 Geo. IV. c. 52, s. 1, it was provided, that it shall not be lawful for the coroner to direct the interment of a felo de se in any public highway; but he shall direct him to be interred,—without any stake being driven into his body,—in the churchyard or other burying ground; and that, within twenty-four hours after the inquisition, and between nine and twelve at night: it being declared, however, that this shall not authorize the rites of Christian burial. As to the forfeiture—while it remained in force-it had relation to the time of the act done in the felon's lifetime, which was the cause of his death. [And therefore if husband and wife were possessed jointly of a term of years in land, and the husband drowned himself,—the land was forfeited to the Crown, and the wife lost the survivorship. For by the act of casting himself into the water, he forfeited the term, which gave a title to the Crown prior to the wife's title by survivorship; which could not accrue till the instant of her husband's death (1).] But forfeiture in this species of felony has now, as in other kinds, been wholly abolished by the 33 & 34 Vict. c. 23, (the Felony Act of the year 1870,) to which we have already made frequent reference (i).

(h) Finch, L. 216.

(i) Even prior to this Act, the forfeiture which accrued in the case of a felo de se was often remitted by the crown. Blackstone remarking, (vol. iv. p. 190,) that “though

« it must be owned that the letter 6 of the law borders a little on se

verity, yet it is some alleviation “ that the power of mitigation is “ left in the breast of the sovereign, “ who, upon this (as on all other


[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 the sudden heat of the passions; murder, from the wickedness of the heart.

First. Manslaughter is, therefore, thus defined (k): the unlawful killing of another, without malice, either express or implied (l): 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 institutions, homicidia vulgaria ; quæ aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiæ calore et impetu(m): and hence it has been held that in manslaughter there can be no accessories before the fact (n); because it must be done without premeditation.

As to the first or voluntary branch: if upon a sudden quarrel in the way of chance medley (o), two persons fight, and one of them kills the other, that 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 (p), 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 he is not excusable

“occasions), is reminded by the oath “ of his office, to execute judgment “ in mercy.”

(k) 1 Hale, P. C. 466.

(1) In an indictment for manslaughter, the charge should be that “ the defendant did feloniously kill " and slay the deceased,” and it is

unnecessary to set forth the manner or means. (24 & 25 Vict. c. 100, s. 6.)

(m) Stiern. de Jure Goth. I. 3,

c. 4.

(n) Vide sup. p. 40.
(0) Vide sup. p. 54.
(p) Hawk. P. C. b. 1, c. 31, s. 29.

[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 (9). 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 kill the other, this is deliberate revenge, and not heat of blood; and accordingly amounts to murder (r). So if a man takes another in the act of adultery with his wife, and kills him directly on the spot; though this was allowed by the laws of Solon (s), as likewise by the Roman civil law if the adulterer was found in the husband's own house (t),- and also among the antient Goths (u),—yet in England it is not absolutely ranked in the class of justifiable homicides, as in the case of forcible rape; but it is manslaughter (x). It is, however, the lowest degree of it; and therefore in such a case the court directed the burning in the hand, formerly inflicted for manslaughter and other felonies not punished with death, to be gently inflicted; because there could not be a greater provocation (y). Manslaughter therefore on a sudden provocation, differs from excusable homicide se defendendo on a sudden affray, in this; that in the one case there is an apparent necessity for self-preservation to kill the aggressor; in the other there is no necessity at all, being only a sudden act of revenge (z).

The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure, in this ;—that misadventure always happens in consequence of a lawful act, but this species of manslaughter in consequence of an unlawful one. As if two persons play at sword and buckler, (unless by the king's command,) and

(1) Kelyng, 135.
(r) Fost. 296.
(8) Plut. in Vit. Solon.
(t) Ff, 48, 5, 24.

(u) Stiern. de Jure Goth. 1. 3, c, 2.

(x) i Hale, P. C. 486.
(y) Sir T. Raym. 212.
(z) Vide sap. p. 54.

[one of them kills the other ; this is manslaughter, because the original act was unlawful: but it is not murder, for the one had no intent to do the other any personal mischief (a). So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection; as when a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter or murder, according to the circumstances under which the act was done. If it were in a country village where few passengers are, and he call out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning (6); and murder, if he knows of their passing, and yet gives no warning at all,—for then it is malice against all mankind (c). And in general, when an involuntary killing happens in consequence of an unlawful act: it will be either murder or manslaughter according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent, or in its consequences naturally tending to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it will amount only to manslaughter (d).]

Next, as to the punishment of this degree of homicide. The crime of manslaughter amounts to felony (e): and

(a) 3 Inst. 56.
(6) Kel. 40.
(c) 3 Inst. 57.

(d) Foşt. 258; Hawk. P. C. b. 1, c. 31, s. 46. Homicide, lowever, amounts to murder, if committed in resisting an officer of justice in the lawful execution of his duty, even though there be no felonious intent. Vide post, p. 72.

(e) In the particular case of manslaughter by stabbing, though done upon sudden provocation, the offence


was formerly a capital felony. This was by statute 1 Jac. 1, c. 8, which provided, that when one thrust or stabbed another,-the party stabbed not having then a weapon drawn, nor having then first stricken the party stabbing,- so that he died thereof within six months after, the offender should not have the benefit of clergy, though he did it not of malice aforethought. “A statute made,” says Blackstone (vol. iv. p. 193), on account of the frequent



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