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the party die within that time, the forfeiture shall have relation to the wound given, and cannot be saved by any alienation or

other act whatsoever in the mean time. 5 Co. 110. Sect. 8. However, nothing can be forfeited as a deodand, nor Co. Lit. 115.

seized as such, till it be found by the coroner's inquest to have Dalt. c. 97. S. P. C. 21. caused a man's death; but after such inquisition, the sheriff is Pult. 125. answerable for the value of it, and may levy the same on the See 4 Edw, 1.

town where it fell, and therefore the inquest ought to find the

n whore it fall on de Offic, Coro· natoris. value of it. (3) 1 Hale, 418, 419.

(3) Upon inquisitions of this kind the jury generally find the value of the deodand to be as small as possible, and even confine that value, according to the circumstances of the case, to the very thing or part of the thing itself which caused the death. 2 Bac. Abr. 26. This practice the court of King's Bench has impliedly sanctioned, by refusing to reform it on an application in favour of the crown or its grantee. Fos. 206. 2 Bar. K. B.

82. Nor can such an inquisition be taken by the grand jury on default of the coroner, 1 Burr. 19. (and when taken by the coroner, it may be moved and traversed, 1 Burr. 20. 2 Hale, 416.) because it is transacted in secret, taken er parte, and intended as the platform of an odious superstitious claim, 4 Inst. 196. repugnant to the principles of sound reason and true policy. Foster, 266.

CHAP. IX.

OF FELO DE SE.

(1) HOMICIDE properly so called, is either against a man's own life or that of another.

In

(1) Homicide, in its most general division, is into felonious or not felonious. Felonious is either felo de se, or felonious homicide of a man's self; murder, which is the killing of another with malice aforethought, either express or implied; and manslaughter, which is the killing of another without premeditation or malice aforethought. Homicide not felonious is either justifiable or excusable. It is justifiable in advancement of justice, as by the execution of malefactors, or when it happens in the due and proper execution of legal process to which resistance is made. It is also justifiable when it happens in certain cases of defence of a man's property, habitation, or person; but this, it is to be observed, does not extend to every case where a man's personal safety or property or habitation is invaded, but only to cases when a known felony is altempted to be committed by violence, and when it is necessary for immediate protection to repel force by force-as an attempt to commit a burglary in a man's house, to rob him or to murder; in these cases it is justifiable to kill the aggressor. There are other cases of homicide where the kill. ing cannot be wholly justified, yet may be committed under such circumstances of palliation that the fact may stand excused: as when it happens by misadventure, or accident; or in other cases of self-defence, when the circumstances under which a man is killed will not amount to a justification of the party killing the other, and yet it is so far excusable that it is not the felonious killing of manslaughter. With respect to felonious homicide, the ancient judgment was that of death, as in other cases of felony, but with benefit of

clergy, until the stat. of 23 H. 8. took away clergy from killing with malice aforethought, which since that time has always been a necessary part of the legal definition of murder. Sir E. Coke says, indeed, in his Commentary on the stat. of Marlberge, c. 26. that at common law the judgment of death was awarded in all cases of excusable homicide; but in this opinion he seems clearly to be wrong, and is contradicted by both Hale and Foster. He seems to found his opinion upon the words of the statute of Marlberge, and on a misapprehension of the meaning of the word “mur drum," as there used. The statute enacts, “ Murdrum de cetero non adjudicetur coram justiciarios ubi infortunium tantummodo adjudicatum est sed locum habeat murdrum de interfectis per feloniam tantum et non aliter.He seems to suppose that the word “murdrum" was meant to express the crime of homicide, whereas it is evident it was meant to designate the fine anciently called murdrum, which was set upon the township where any man was secretly killed. It should seem that among other abuses and exactions which the turbulence of those times had given birth to, was the improper levying the fine called murdrum upon townships, and in cases where it ought not to have been levied; and therefore the statute of Marlberge, which passed at the close of the contest between Henry and his barons, and regulated many abuses, amongst other things, directs, c. 25. that vills should not be amerced because all above twelve years of age did not attend the court of the sheriff and coroner, and then immediately goes on, in the next chapter, that " murdrum shall only be adjudged in cases of few

lonious

• In treating of homicide against a man's own life, I shall con-
sider, FIRST, in what cases a man shall be said to be a felo de se:
SECONDLY, what he shall forfeit for this offence.
· As to the FIRST POINT, viz. In what cases a man shall be
said to be a felo de se.

Sect. 1. I shall take it for granted that, in this as well as in all 1 Hale, 411. other felonies, the offender ought to be of the age of discretion, Crom. So, 31.

Dalt, c. 92. and compos mentis; and therefore that an infant killing himself 3 Insti: under the age of discretion, or a lunatic during his lunacy, cannot be a felo de se.

Sect. 2. But here I cannot but take notice of a strange notion which has unaccountably prevailed of late, that every one who kills himself must be non compos of course; for it is said to be 3 Mod. 100. impossible that a man in his senses should do a thing so contrary to nature and all sense and reason.

Sect. 3. If this argument be good, self-murder can be no crime, Plow. 261. for a madman can be guilty of none: but it is wonderful that the Comb. 2, 3. repugnancy to nature and reason, which is the highest aggravation of this offence, should be thought to make it impossible to be any crime at all, which cannot but be the necessary consequence of this position, that none but a madman can be guilty of it. May it not with as much reason be argued, that the murder of a child or of a parent is against nature and reason, and consequently that no man in his senses can commit it? But has a man therefore no use of his reason, because he acts against right reason? Why may not the passions of grief and discontent tempt a man knowingly to act against the principles of nature and reason in this case, as those of love, hatred, and revenge, and such like, are too well known to do in others ?

Sect. 4. However, our laws have always had such an abhorrence of this crime, that not only he who kills himself with a deliberate and direct purpose of so doing, but also in some cases Dalt. c. 144. be who maliciously attempts to kill another, and in pursuance of 44 Ass. 53.

B. Cor. 12. 14. such attempt unwillingly kills himself, shall be adjudged in the 3 Ins eye of the law a felo de se. For wherever death is caused by an

54.

act

lonious homicide; so that it appears to have relation more to the fine than to the crime. Besides, we learn from Bracton, c. 15. s. 6. that different customs prevailed in different places as to what homicides should subject the vill to the fine of murdrum, and it might be another object of the statote to render the law upon this point uniform throughout England, by enacting that murdrum should only have place in cases of felonious homi. cide. But although excusable homicide was not attended with forfeiture of life, yet the party committing the deed forfeited all his goods. But this is doubted by Sir M. Foster (Discourse on Homicide), who thinks the forfeiture was not of all the goods; but whether of all or of part, the statute of Gloucester enacts, that if homicide “soit troure per pay que il le fist soy' defend ou per mis" adventure donque fra les justices assavoir au roy et « le roy lui la fra sa grace si lui plaist.” After this statute, if the verdict found the fact of misadven

ture or se defend', upon the same being returned into Chancery the party had a charter of pardon as a matter of course; for the words, if the king please," si lui plaist,” Sir Ed. Coke says, are but words of reverence to the king, for the king is ex merito justiciæ to grant the pardon. Sir M. Foster, however, takes another view of this statute, and thinks the party had his pardon as matter of course before the passing this statute, and that the object of this enactment was to have the return made by the justices in eyre, and not by the sheriff or coroner upon the writ de odio et atid, as was the custom at common law. This course of finding special verdicts of the facts is abandoned in modern times ; and in all questions of homicide the practice now is, if the facts proved do not amount to murder or manslaughter, for the court to direct a general verdict of acquittal. *(Foster on Homicide, C. 4.)

act done with a murderous intent, it makes the offender a murderer; and therefore, if A. discharge a gun at B. with an intent to kill him, and the gun breaks and kills A.; or if A. strike B. to the ground, and then hastily falling upon him wound himself with a knife which B. happens to have in his hand and die, in

both these cases A. is felo de se, for he is the only agent. Staun. 16.

Sect. 5. But if B., being so assaulted, had been driven to the Pult, 119. wall, and holden up a pitch-fork or knife, standing in his defence, Vide 1 Hale,

and A. had hastily run upon the same and been slain, B. should 413 & 493, upon this case ; be adjudged to kill him in his own defence. And for the same reawhich he con- son perhaps in the case above, if B. after he had fallen to the tends is misre

ground, had holden up a knife or sword in his defence, and A. presented both ground, naa noiden up by Dalton and had fallen thereon and been slain, B. should be adjudged to kill Coke, and that him se defendendo; for B. exerts his strength in his own defence,

and by so doing occasions the mortal wound received by A. HOMICIDE per infortunium.

Sect. 6. He who kills another upon his desire or command, is, in the judgment of the law, as much a murderer as if he had done it merely of his own head, and the person killed is not looked upon as a felo de se, inasmuch as his assent was merely

void, as being against the laws of God and man: but where two Keilw. 136.

persons agree to die together, and one of them, at the persuasion of the other, buys ratsbane, and mixes it in a potion, and both drink of it, and he who bought and made the potion survives by

using proper remedies, and the other dies, perhaps it is the betMoor, 754. ter opinion, that he who dies shall be adjudged a felo de se, be

cause all that happened was originally owing to his own wicked purpose, and the other only put it in his power to execute it in that particular manner.

As to THE SECOND POINT, viz. What such an offender shall

forfeit. S. P. C. 188, Sect. 7. It seems clear that he shall forfeit all chattels, real or 189. 262, 263. personal, which he hath in his own right, and also all such chat1 Hale, 413. Finch, 216.

tels real whereof he is possessed either jointly with his wife, or Crom. 31. in her right; and also all bonds and other personal things in ac3 Inst. 55.

tion belonging solely to himself; and also all personal things in 19 H. 6. 47. 8 E. 4. 24.

• action, and, as some say, entire chattels in possession, to which Raym. 7. he was entitled jointly with another, on any account except that Plow. 243. 259. of merchandize: but it is said, that he shall forfeit a moiety only

100 of such joint chattels as may be severed, and nothing at all of 193.

what he was possessed of as executor or administrator. 1 Hale, 413. Sect. 8. However, the blood of a felo de se is not corrupted, Plow. 261, 262. nor his lands of inheritance forfeited, nor his wife barred of her

dower. 5 Co. 110.

Sect. 9. Also no part of the personal estate is vested in the 3 Inst. 54. king, before the self murder is found by some inquisition; and 1 Saund. 362. consequently the forfeiture thereof is saved by a pardon of the 1 Hale, 414. 1 Sid. 150.

offence before such finding. 162. 2 Mod. 53. 3 Mod. 100. 241, 242. Con. 1. Lev. 8. 1 Keb. 67, 68. 4 Comm. 190. Plow. 260. Sect. 10. But if there be no such pardon, the whole is forfeit5 Co. 110. ed immediately after such inquisition, from the time such mortal 1 Hale, 412,

wound was given, and all intermediate alienations are avoided.

wound wa 4 Com. 190.

Sect.

262. 323.

super vioune corporis, if the body can be found; and an inquisi. Aene

1 Roll. 217.

Sect. 11. And such inquisitions ought to be by the coroneř 3 Inst. 55. super visum corporis, if the body can be found; and an inquisi- 47 Ed. 3. 7.

woun, au au syur See B. 2. c. 9. tion so taken, as some say, cannot be traversed.

s. 52. 1 Hale,

414 to 417. Far, 16. Salk, 190. 377. Carth. 72. Skin. 45. Stamf. 183. 3 Mod. 80. 238. 1 Mod. 82. 2 Keb. 859. 1 Vent, 181, 182. 2 Vent. 38. 2 Jones, 198. 2 Hale, 59. Lev. 8. Sid. 150.

Sect. 12. But if the body cannot be found so that the coro- 3 Inst. 55. ner, who has authority only super visum corporis, cannot proceed,

od 2 Lev. 141.

u the inquiry may be by justices of the peace, who by their com- Carth. 73. mission have a general power to inquire of all felonies; or in the 1 Burr. 18.

1 Freem, 420, king's bench, if the felony were committed in the county where 1 the said court sits; and such inquisitions are traversable by the 1 Sid. 101, 144. executor, &c.

Sect. 13. Also all inquisitions of this offence, being in the na- Salk. 377. ture of indictments, ought particularly and certainly to set forth 7 Mod. 16. the circumstances of the fact; as the particular manner of the 1 Mod. 82. wound, and that it was mortal, &c. and in the conclusion add, that the party in such manner murdered himself.

Sect. 14. Therefore if either the premises be insufficient, as 2 Lev. 140. 152. if it be found that the party flung himself away into the water, 3 Mod. 100. et sic seipsum emergit, which is nonsense, because emergo” sig

8 Vide Salk. 377. nifies only to rise out of the water: or if there be wanting the proper conclusion, et sic seipsum murdravit, the inquisition is not good.

Sect. 15. Yet if it be full in substance, the coroner may be 1 sid. 225. 259. served with a rule to amend a defect in form.

3 Mod. 101.

1 Keb. 907. Fitzg. 6. See 1 Saund. 273, for process from the CROWN-OFFICE on such an inquisition against a debtor of a felo de se.

19 Mod. 112.

CHAP. X.
OF JUSTIFIABLE HOMICIDE.

HOMICIDE against the life of another either amounts to fe-
LONY, or does not. That which amounts not to felony, is either
justifiable, and causes no forfeiture at all, or excusable, and causes
the forfeiture of the party's goods.
Of JUSTIFIABLE HOMICIDE I shall premise these general rules.

Sect. 1. First, It must be owing to some unavoidable necessity Vid. sect. 22. to which the person who kills another must be reduced without any manner of fault in himself.

Sect. 2. Secondly, There must be no malice coloured under 2 Roll. 120. pretence of necessity; for wherever a person who kills another Kely: 28.

Bract. 1. 3. c. 4. acts in truth upon malice, and takes occasion from the appear- 21 Edw. 1. de ance of necessity, to execute his own private revenge, he is Mal. in Parcis. guilty of murder. Sect. 3. Thirdly, According to the opinion of the old books(a), (a) 22 Ass. 55.

which 37 Ass. pl. 41.

27 H. 6. 20, 21. Dalt. 150. B. App. 5. 129, B. Cor. 57. 87.

11. 58.
2 Inst. 316.
Co. Litt. 283,

10 Co. 76. 22 E. 4. 33.

which in this respect seems to be contradicted by others more (6) 35 Hen. 6. modern (b), it seems, that one may set forth a fact, amounting to

justifiable homicide, in a special plea to an indictment or appeal

of murder; and that the same being found true, he shall be dis1 Hale, 478.

missed, without being arraigned, or enforced to plead not guilty. And indeed it seeme extremely hard, that a sheriff or judge who condemns or executes a criminal, &c. should be forced, on a frivolous prosecution, to hold up their hands at the bar for it, &c. But it is agreed, that no one can plead a fact amounting to homicide se defendendo, or by misadventure, but that, in such a case, the defendant must plead not guilty, and give the special matter in evidence: and it is also agreed, that where a special fact, amounting to justifiable homicide, is found by the jury, the party is to be dismissed, without being obliged to purchase any pardon, &c.

JUSTIFIABLE HOMICIDE is either of a public or of a private nature. Justifiable homicide of a public nature is such as is occasioned by the due execution or advancement of public justice.

- That of a private nature is such as happens in the just defence of a man's person, house, or goods.

Of JUSTIFIABLE HOMicide in the due execution of public jus

tice, the following rules must be observed. Dalt, c. 98.

Sect. 4. First, The judgment, by virtue whereof any person is 1 Hale, 497.

put to death, must be given by one who has jurisdiction in the cause; for otherwise both judge and officer may be guilty of fe

lony. Hale, 497. Sect. 5. And therefore, if the court of common pleas give

judgment on an appeal of death, or justices of peace on an in3 Inst. 48. 5 Co. 106.

dictment of treason, and award execution, which is executed, Cro, Car. 98. both the judges who give, and the officers who execute the senMoor, 333.

tence, are guilty of felony, because, these courts having no more 4 Comm. 178.

jurisdiction over these crimes than mere private persons, their

proceedings thereon are merely void, and without any foundation. Dalt. c. 98. Sect. 6. But if the justices of peace, on an indictment of tres1 Hale, 501. pass, arraign a man of felony, and condemn bim, and he be exe

cuted, the justices only are guilty of felony, and not the officers who execute their sentence; for the justices had a jurisdiction over the offence, and their proceedings were irregular and erro

neous only, but not void. Co. Litt. 128. Sect. 7. Secondly. The judgment must be executed by the

lawful officer. 2 Ass. 3.

Sect. 8. Indeed it was formerly holden, that any one might as S.P.C. 13. 196. lawfully kill a person attainted of treason or felony as a wolf or 1 Hale, 497. 11 H. 4. 12.

any other wild beast; and anciently a person condemned in an Plow. S06. appeal of death was delivered to the relations of the deceased, 3 Inst. 131. in order to be executed by them. 27 Ass. 41. Sect. 9. But at this day it seems agreed, that if the judge who 1 Hale, 501. gives the sentence of death, and, à fortiori, if any private person B. App. 69.

execute the same, or if the proper officer himself do it without a

lawful command, they are guilty of felony. Dalt, c. 98.

Sect,

500.

Cor. 67. 197.
Co. Lit. 128.

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