quarrel, it seems that he who kills him is guilty of manslaughter F. Cor. 180. only. Sect. 48. But it hath been adjudged, that if a justice of peace, constable, or watchman, or even a private person, be killed in endeavouring to part those whom he sees fighting, the person by whom he is killed is guilty of murder; and that he cannot excuse himself by alleging that what he did was in a sudden affray in the heat of blood, and through the violence of passion; for he who carries his resentment so high as not only to execute his revenge against those who have affronted him, but even against such as have no otherwise offended him but by doing their duty, and endeavouring to restrain him from breaking through his, shews such an obstinate contempt of the laws, that he is no more to be favoured than if he had acted in cool blood. Savil, 67. 9 Co. 68. Fos. 310, 311. Sect. 49. Yet it hath been resolved, that if the third person Kely. 66. 115. slain in such a sudden affray do not give notice for what purpose he comes, by commanding the parties in the king's name to keep 1 Hale, 442. the peace, or otherwise manifestly shewing his intention to be 460, 461. not to take part in the quarrel, but to appease it, he who kills Ld. Ray. 1296. him is guilty of manslaughter only, for he might suspect that he came to side with his adversary. Sect. 50. But if the person interposing in such case be an Fost. 135. 311. officer within his proper district, and known, or but generally acknowledged to bear the office he assumeth, the law will presume that the party killing had due notice of his intent, especially if it be in the day-time. As to THE SECOND INSTANCE of this kind, viz. Such killing as happens in the execution of an unlawful action, where the principal design is to commit a bare breach of the peace, not intended against the person of him who happens to be slain. Sav. 67. Moor, 86. Palm. 35. Sect. 51. It seems clear, that regularly, where divers persons S. P. C. 17. resolve generally to resist all opposers in the commission of any 1 Hale, 442, breach of the peace, and to execute it in such a manner as natu- 443. 463. 534. rally tends to raise tumults and affrays, as by committing a violent disseisin with great numbers of people, hunting in a park, &c. and in so doing happen to kill a man, they are all guilty of murder; for they must at their peril abide the event of their actions who wilfully engage in such bold disturbances of the public peace, in open opposition to, and defiance of, the justice of the nation. Crom. 24, 25. 5 Mod. 280. Dyer, 128. + Sect. 52. But in such case the fact must appear to have Foster, 354. been committed strictly in prosecution of the purpose for which 9 St. Tr. 715. the party was assembled; and therefore if divers persons be engaged in an unlawful act, and one of them with malice prepense against one of his companions, finding an opportunity, kills him, the rest are not concerned in the guilt of that act, because it hath no connection with the crime in contemplation. (a) So where (a) Prin. P. L. two men were beating another man in the street, and a stranger made some observation upon the cruelty of the act, upon one of the two men gave him a mortal stab with a knife; both the men were indicted as principals in the murder, yet, although which 237. Kely. 112. both (See Rex v. Hodgson, 1 Hale, 440, Dalt. c. 93. 22 Ass. 71. 9 Co. 68. Crom. 25. 1 Hale, 437. Crom. 26. 1 Roll, 407. 3 Bulst. 206. Cowp. 832. Kely. 67. 86. Fost. 318, 319. 12 Mod. 361. Fost. 271. 309. 318. both were doing an unlawful act in beating the man, as the death of the stranger did not ensue upon that act, and it appearing that only one of them intended any injury to the person killed, the judges were of opinion that the other could not be guilty, either as principal or accessary, and he was acquitted. (b) Rex.v. Thompson, Kely. 66. 8 Mod. 164. 12 Mod. 236. 629. Sect. 53. Yet where divers rioters having forcible possession of a house, afterwards killed a person whom they had ejected, as he was endeavouring in the night forcibly to regain the possession, and to fire the house, they were adjudged guilty of manslaughter only, notwithstanding they did the fact in maintenance of a deliberate injury; perhaps for this reason, because the person slain was so much in fault himself. Sect. 54. But if in such or any other quarrel, whether it were sudden or premeditated, a justice of peace, constable, or watchman, or even a private person, be slain in endeavouring to keep the peace and suppress the affray, he who kills him is guilty of murder; for notwithstanding it was not his primary intention to commit a felony, yet inasmuch as he persists in a less offence with so much obstinacy, as to go on in it to the hazard of the lives of those who no otherwise offend him but by doing their duty in maintenance of the law, which therefore affords them its more immediate protection, he seems to be in this respect equally criminal, as if his intention had been to commit a felony. As to THE THIRD INSTANCE of this kind, viz. Such killing as happens in the execution of an unlawful action, the principal motive whereof was to assist a third person. Sect. 55. It seems clear, that if a master, maliciously intending to kill another, take his servants with him, without acquainting them with his purpose, and meet his adversary and fight with him, and the servants seeing their master engaged take part with him, and kill the other, they are guilty of manslaughter only, but the master of murder. Sect. 56. And therefore it follows, à fortiori, that if a man's servant or friend, or even a stranger, coming suddenly, and seeing him fighting with another, side with him and kill the other, or seeing his sword broken send him another, wherewith he kills the other, he is guilty of manslaughter only. Sect. 57. Yet in this very case, if the person killed were a bailiff or other officer of justice, resisted by the master, &c. in the due execution of his duty, such friend or servant, &c. are guilty of murder, whether they knew that the person slain were an offi cer or not. Sect. 58. But perhaps it may be objected, that in this last case there seems to be no more malice than in the former; and such third person being wholly ignorant that the party killed was an officer, seems to be no more in fault than if he had been a private person. Sect. 59. To this it may be answered, that all fighting is highly unlawful, and that he who, on a sudden seeing persons engaged in it, is so far from endeavouring to part them, as every good subject ought, that he takes part with one side, and fights in the 1 Sid. 160. quarrel without knowing the cause of it, shews a high contempt Noy, 50. of the laws, and a readiness to break through them on a small occasion, and must at his peril take heed what he does, and consequently might, perhaps, in strict justice, be adjudged in the foregoing cases to act with malice, which doth not always signify Plow, 100. a particular ill-will against the person killed, as appears by many of the above-mentioned cases; and though such person be favoured in respect of the suddenness of the occasion, where both the quarrel and the persons are private, yet he must not expect such indulgence where the fight, in which he so rashly engages, was begun in open opposition to the justice of the nation, and a person happens to be killed thereby who engaged in maintenance thereof, and on that account is under its more particular care; and may justly challenge, that his opposers be made examples, to deter others from joining in such unwarrantable quarrels. which this case Sect. 60. But if a man, seeing another arrested and restrained Kely. 60. 137. from his liberty, under colour of a press-warrant or civil process, Crom. 27. &c. by those who in truth have no such authority, happen to kill Holt, 485. Ld. Ray. 1296. such trespassers in rescuing the person oppressed, he shall be But the prinadjudged guilty of manslaughter only, notwithstanding the in- ciples upon jured person submitted to them, and endeavoured not to rescue was decided, himself, and the person who rescued him did not know that he was illegally arrested; for since in the event it appears that the persons slain were trespassers, covering their violence with a show of justice, he who kills them is indulged by the law, which in these cases judges by the event, which those who engage in such unlawful actions must abide at their peril. As to THE FOURTH INSTANCE of this kind, viz. Such killing as happens in the execution of an unlawful action, whereof the direct design was to escape from an arrest. Sect. 61. It seems to be agreed, that whoever kills a sheriff, or any of his officers, in the lawful execution of a civil process, as on arresting a person upon a capias, &c. is guilty of murder. are very ele- Mr. Justice to 318. 2 Hale, c. 83. Crom. 24. 6 St. Tr. 195. Foster, 29. 135. 308. Sect. 62. Neither is it any excuse to such a person that the process was erroneous (for it is not void by being so), or that the arrest was in the night, or that the officer did not tell him for what cause he arrested him, and out of what court (which is not necessary when prevented by the party's resistance); or that the officer did not shew his warrant, which he is not bound to do at all if he be a bailiff commonly known, nor without a demand if he be a special one. Sect. 63. Yet the killing of an officer in some cases will be manslaughter only; as 9 Co. 66. 68. C. Jac. 280.486. 1 Hale, c. 457. 458. 462. Fost. 137. 311, 31. $18. 2 Hale, c. 85. 6 Co. 68, 69. Sect. 64. FIRST, Where the warrant by which he acts gives C. Car. 372. him no authority to arrest the party; as where a bailiff arrests 537. "J. S. a baronet" who never was knighted, by force of a warrant to arrest "J. S. knight." 1 Lev. 91. 12 Co. 49. Jones, 429. 1 Hale, 56. 6 Mod. 173. Ld. Raym. 1028. 2 Roll. 137. Palm. 52. 1 Hale, 458. 5 Co. 93. Sect. 65. SECONDLY, Where a good warrant is executed in an unlawful manner; as if a bailiff be killed in breaking open a door or window to arrest a man; or perhaps if he arrest one on a Sunday since 29 Car. 2. c. 7. by which all such arrests are made unlawful. (1) 2 Hale, 117. 470. Salk. 79. Foster's Crown Law, 311. 319. Vide sup. c. 10. s. 5. Douglas, 200. C. 11. s. 12. 3 Inst. 57. 12 Mod. 628. Ld. Ray. 143. Prin. P. L. 236. S. P. C. 16. 43 Ed. 3. 33. 4 Inst. 251. 1 Hale, 429, 430. As to THE FIFTH INSTANCE of this kind, viz. Such killing as happens in the execution of an unlawful action, whereof the principal purpose was to usurp an illegal authority. Sect. 66. It seems clear, that if persons take upon them to put others to death, either by virtue of a new commission wholly unknown to our laws, or by virtue of any known jurisdiction which clearly extends not to cases of this nature, as if the court of common pleas cause a man to be executed for treason or felony, or the court martial, in time of peace, put a man to death by the martial law, both the judges and officers are guilty of murder. Sect. 67. But where persons act by virtue of a commission, which if it were strictly regular would undoubtedly give them full authority, but happens to be defective only in some point of form, it seems that they are no way criminal. As to THE SIXTH INSTANCE of this kind, viz. Such killing as happens in the execution of an unlawful action, where no mischief was intended at all. Sect. 68. It is said, that if a person happen to occasion the death of another, inadvisedly doing any idle wanton action, which cannot but be attended with the manifest danger of some other; as by riding with a horse, known to be used to kick, among a multitude of people, by which he means no more than to divert himself by putting them into a fright, he is guilty of murder. Sect. 69. Also it hath been anciently holden, that if a person not duly authorised to be a physician or surgeon, undertake a cure and the patient die under his hand, he is guilty of felony ; but inasmuch as the books wherein this opinion is holden were written before the statute of 23 Hen. 8. c. 1. which first excluded such felonious killing as may be called wilful murder of malice prepense, from the benefit of clergy, it may be well questioned whether such killing shall be said to be of malice prepense, within the intent of that statute. Sect. 70. However, it is certainly highly rash and presumptuous for unskilful persons to undertake matters of this nature; and indeed the law cannot be well too severe in this case, in (1) Peace officers having a legal warrant to arrest for a breach of the peace, may break open doors, after having given due notice and demanded admittance. Foster, 136. but they cannot justify breaking open outward doors or windows to execute a civil suit. Fost. 319, 320. Cowp. 3. Therefore, where a man, who had been arrested, by the artful contrivance of an officer, upon civil process (that of the warrant having been filled up after it had been sealed), obliged the officer to de order camp by snapping a pistol at him three times; but the officer returning to the house, accompanied by the plaintiff and the attorney, and all three attempting to force in, the man within fired a gun through the door and shot the attorney, it was ruled manslaughter only. 10 St. Tr. 462. Fost. 311, 312. See also the case of Mary Adey, Cases in C. L. 2d edit. 188. and the Gordons' case, Cases Cro. Law, 412. order to deter ignorant people from endeavouring to get a livelihood by such practice, which cannot be followed without the manifest hazard of the lives of those who have to do with them: See Dalt. c. 93. but surely the charitable endeavours of those gentlemen who 4 Com. 197. study to qualify themselves to give advice of this kind, in order to assist their poor neighbours, can by no means deserve so severe a construction from their happening to fall into some mistakes in their prescriptions, from which the most learned and experienced cannot always be secure. For other particulars relating to this head, see the chapter of Principals and Accessaries, in the second book. CHAP. XIV. OF PETIT-TREASON. AT common law not only the offences specified in the twenty- 3 Inst. 20, 21. fifth of Edward the Third, but many others also were esteemed petit-treasons, which are not so at this day; as (a) piracy by a subject; (b) discovery of the king's counsel by one of the grand jury; (c) an attempt by a wife to kill her husband, &c. (a) 40 Ass. 35. (27 Ass. 63. 3 Inst. 22. Dalt. c. 91. (c) S. P. C. 10. See 1 Hale, 377 to 382. Sect. 1. But by 25 Edw. 3. st. 5. c. 2. no offence shall be adjudged petit-treason, except in the following instances: 1. Where a servant kills his master. 2. Where a wife kills her husband. 3. Where an ecclesiastical man, secular or religious, kills his prelate to whom he owes obedience. Plow. 86. 3 18 Eliz. c. 1. 11. Dalis. 14. Inst. 20. Sect. 2. And this statute hath been so strictly construed, that no other case whatsoever, which cannot be brought within the meaning of these words, however it may be in its own nature more heinous, shall, by parity of reason, be expounded to be within the equity of them; and therefore the murder of a father by a son shall not be punished as petit-treason, unless the son may, by a reasonable construction, come under the word "ser- 1 Hale, 380. vant," serving the father for meat, drink, clothes, or wages, in Lamb. 248. which case he shall be indicted by the name of a servant. Dalt. c. 91. Sect. 3. Yet the murder of a mistress, or of a master's wife, 1 Hale, 380. has been adjudged petit-treason within this statute; for notwith- B. Tres. 8. 12. standing the person slain can in neither of these cases, in good Plow. 86. grammar, come under the word "master," yet they are clearly 19 H. 6. 47. within the meaning thereof, being used here to signify any person 4 Co. 46. to whom another stands related as a servant. S Inst. 20. Sect. 4. Also the murder of a person by one who was his ser- 33 Ass. 7. vant, upon malice conceived during the service, though it be not S. P. C. 10. within the express words, is within the meaning of them, inas- Plow. 260. much as it is but the execution of the treasonable intention of the party while he was a servant. 1 Co. 99. 3 Inst. 20. Sect. 5. Also the procuring, aiding, or abetting, of any of these 3 Inst. 20, 21, offences, 138. |