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Sect. 10. Thirdly, The execution must be pursuant of, and $5 H. 6. 58. warranted by, the judgment, otherwise it is without authority; S... 13. B. App. 5. and consequently if a sheriff behead a man where it is no part of See B. 2. c. 51. the sentence to cut off the head, he is guilty of felony (1).

Finch, 31. 3 Inst. 52.211. 1 Hale, 454. 501. 2 Hale, 411. 4 St. Tr. 129. Foster, 268,

Of JUSTIFIABLE HOMICIDE in the due advancement of public justice, I shall consider,-FIRST, in relation to criminal,-SECONDLY, in relation to civil causes.

I. HOMICIDE in the advancement of public justice in criminal causes may be justified in several cases.

Sect. 11. First, If a person, having actually committed a felony, 22 Ass. 55. will not suffer himself to be arrested, but stand on his own de- B. Cor. 87. 89. fence, or fly, so that he cannot possibly be apprehended alive by S. P. C. 13. those who pursue him, whether private persons or public officers, Dalt. c. 98. with or without a warrant from a magistrate, he may be lawfully Crom. 30. slain by them.

3 Inst. 221.

F. Cor. 192. 258. 261.

F. Cor. 179.

1 Hale, 489. Foster, 271. Furem si aliter capi non posset, occidere permittunt. Sternh. de jure Goth. Sect. 12. Secondly, If an innocent person be indicted of a See authorities felony, where, in truth, no felony was committed, and will not above cited. suffer himself to be arrested by the officer who has a warrant for 261. that purpose, he may lawfully be killed by him, if he cannot otherwise be taken; for there is a charge against him upon record, to which at his peril he is bound to answer.

494, 495, 496.

Sect. 13. Thirdly, If a criminal, endeavouring to break the 1 Hale, 481. gaol, assault his gaoler, he may be lawfully killed by him in the affray.

Crom. 30. 158.
Staund. 13.

2 Inst. 52.
Poph. 121.

Sect. 14. Fourthly, If those who are engaged in a riot, or a forcible entry, or detainer, stand in their defence, and continue the force in opposition to the command of a justice of peace, &c. or resist such justice endeavouring to arrest them, the killing of them may be justified (a): and so perhaps may the killing of (a) See THE dangerous rioters by any private persons, who cannot otherwise suppress them or defend themselves from them, inasmuch as every private person seems to be authorised by the law to arm the Public himself for the purposes aforesaid. (2)

RioT ACT,

post. ch. Offences against

Peace.

1 Hale, 491.

Sect. 15. Fifthly, If trespassers in a forest, chace, park, or S. P. C. 13. warren, or any inclosed ground wherein deer are kept, will not Crom. 30. render themselves to the keepers upon an HUE AND CRY made Dyer, $26. to stand to the king's peace, but fly from, or defend themselves 9 St. Tr. 315. against them, they may be slain by force of the statute de malefactoribus in parcis, 21 Edw. 1. st. 2. and 3. and 4 Will. & Mary,

c. 10.

(1) That is, if the officer varieth from the judgment of his own head and without warrant or the colour of authority, but not if he is authorised by custom or by warrant from the crown. For although the king cannot by his prerogative vary the execution so as to aggravate the punishment beyond the intention of the law; yet it doth not follow, that he who may remit part of the judgment, or wholly pardon the offender, cannot mitigate his VOL. I.

G

Sect.

punishment with regard to the pain or infamy of it. Foster, 267.

(2) Therefore if a stranger interpose to part combatants in an affray, giving notice to them of that intention, and they assault him, and in the struggle he should chance to kill, this would be justifiable homicide; for it is every man's duty to interpose for the preservation of the public peace, and for the prevention of mischief. (Foster, 272.)-But

Dalt. c. 98.
Plow. 9.

3 Inst. 221.

37 H. 6. 21.

1 Roll, 189. Foster, 270. 3 Inst. 56. Crom. 24.

Dalt. c. 98.

Sect. 16. Sixthly, If either of the parties fighting in a combat allowed by law for the trial of some special cases, be slain, he who kills him is justified, and the death of the other is imputed to the just judgment of God, who is presumed to give the victory to him who fights in maintenance of the truth.

II. HOMICIDE, in the advancement of justice in civil causes, may also be justified in some cases.

Sect. 17. As where a sheriff, &c. attempting to make a lawful arrest in a civil action, or to retake one who has been arrested and made his escape, is resisted by the party, and unavoidably kills him in the affray.

1 Hale, 494. 4 Comm. 180.

Foster, 292.
Strange, 499.

6 St. Tr. 195.
Crom. 30.

1 Hale, 481. Foster, 271.

Puff. L. of N. 455.

24 H. 8. c. 5.
Dalt. c. 98.
1 Hale, 486,

487. 493, 494.
S. P. C. 14.

B. Cor. 100.

F. Cor. 179.

Sect. 18. And in such case the officer is not bound to give back, but may stand his ground and attack the party.

Sect. 19. But no private person of his own authority can arrest a man for a civil matter, as he may for felony, &c.

Sect. 20. Neither can the sheriff himself lawfully kill those who barely fly from the execution of any civil process.

Of JUSTIFIABLE HOMICIDE of a private_nature, in the just defence of a man's person, house, or goods, I shall shew, FIRST, in what cases the killing of a wrong-doer may be justified by reason of such defence. SECONDLY, where the killing of an innocent person may be so justified.

Sect. 21. AND FIRST, the killing of a wrong-doer, in the making of such defence, may be justified in many cases: as where a man kills one who assaults him in the highway to rob or murder him; or the owner of a house, or any of his servants or lodgers, &c. kill one who attempts to burn it, or to commit in it murder, rob192. 261. 305. bery, or other felony (a); or a woman kills one who attempts to ravish her (3); or a servant coming suddenly and finding his master robbed and slain, falls upon the murderer immediately and kills him; for he does it in the height of his surprize, and under just apprehensions of the like attempt upon himself: but in other circumstances he could not have justified the killing of such an one, but ought to have apprehended him, &c.

C. Car. 544.

26 Ass. 23.
Crom. 26.

Kely. 128, 129.
Fos. 271. 275.

9 Ann. c. 16. (a) Vide sect.

25.

Crom. 27. Sum. 56.

1 Hale, 405. 440, 441.

Sect. 22. Neither shall a man in any case justify the killing another by a pretence of necessity, unless he were himself wholly without fault in bringing that necessity upon himself; for if a man, in defence of an injury done by himself, kill any person whatsoever, he is guilty of manslaughter at least; as where divers rioters

in all these cases there must be an apparent necessity on the officer's side, that the party could not be arrested or apprehended; that the riot could not be suppressed; that the prisoners could not be kept in hold; that the deer-stealers could not but escape, unless such homicide were committed; otherwise without such absolute necessity it is not justifiable. 4 Comm. 180.

(3) The injury intended can never be repaired or forgotten; and nature, to render the sex amiable, hath implanted in the female heart a quick

sense of honour, the pride of virtue, which kindleth and inflameth at every such instance of brutal lust. Fos. 274. Bac. El. 34. Prin. P. L. 211.-So too the feelings of a parent or a husband which involuntarily actuate them at the moment to kill the forcible ravisher of a wife or a daughter's virtue, are justifiable. 1 Hale, 488. 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. 4 Comm. 181.

rioters wrongfully detain a house by force, and kill those who attack it from without, and endeavour to burn it.

Dalt. c. 98.

Sect. 23. Neither can a man justify the killing another in de- Sum. 40. 57. fence of his house or goods, or even of his person, from a bare C. Car. 538. private trespass; and therefore he that kills another, who claim- 1 Hale, 485, ing a title to his house attempts to enter it by force, and shoots 486. 488. at it, or that breaks open his windows in order to arrest him, or Foster, 273. that persists in breaking his hedges after he is forbidden, is guilty of manslaughter; and he who in his own defence kills another that assaults him in his house in the day-time, and plainly appears to intend to beat him only, is guilty of homicide se defendendo, for which he forfeits his goods, but is pardoned of course; yet it Pult. 119. seems that a private person, and, à fortiori, an officer of justice, Sum. 40. who happens unavoidably to kill another in endeavouring to 3 Inst. 158. defend himself from, or to suppress dangerous rioters, may justify Poph. 121. the fact, inasmuch as he only does his duty in aid of the public justice.

Crom. 28.

1 Hale, 481.

3 Inst. 57.

Sect. 24. And I can see no reason why a person who without provocation is assaulted by another in any place whatsoever, in such a manner as plainly shews an intent to murder him, as by Bendlow, 47. discharging a pistol, or pushing at him with a drawn sword, &c. 1 And. 41. may not justify killing such an assailant, as much as if he had at- Kely. 128, 129. tempted to rob him; for is not he who attempts to murder me 484. more injurious than he who barely attempts to rob me? And can Foster, 274. it be more justifiable to fight for my goods than for my life? And it is not only highly agreeable to reason that a man in such circumstances may lawfully kill another, but it seems also to be confirmed by the general tenor of our law-books; which, speaking Crom. 27, 28. of homicide se defendendo, suppose it done in some quarrel or Dalt. c. 98. affray. From whence it seems reasonable to conclude, that S. P. C. 15. where the law judges a man guilty of homicide se defendendo, Vide F. Cor. there must be some precedent quarrel in which both parties al- 284. 286, 287. ways are, or at least may justly be supposed to have been, in Bacon, 33. some fault, so that the necessity to which a man is at length reduced to kill another, is in some measure presumed to have been owing to himself: for it cannot be imagined that the law, which is founded on the highest reason, will adjudge a man to forfeit all his goods, and put him to the necessity of purchasing his pardon, without some appearance of a fault. And though it may be said that there is none in chance-medley, and yet that the party's goods are also forfeited by that, I answer, that chance-medley may be intended to proceed from some negligence, or at least want of sufficient caution in the party who is so unfortunate as to commit it, so that he doth not seem to be altogether faultless. Besides, one of the reasons given in our law-books for which homicide se S. P. C. 15. defendendo forfeits goods, is because thereby a true man is killed; Dalt. c. 98. but it seems absurd, that he who apparently attempts to murder Foster, 288. another, which is the most heinous of all felonies, should be esteemed such, when those who attempt other felonies, which seem to be much less criminal, are allowed to be killed as downright villains, not deserving the protection or regard of the law.

Sect. 25. However, perhaps in all these cases there ought to N. Bendl. 47.

Crom. 27, 28.
Dalt. c. 98.
Sum. 42.
Foster, 273.

Puff. 1. 2. c. 5.
Bract. 155.

1 Hale, 487.
1 And. 41.
Kely. 51.
Prin. P. L. 211.

26. Ass. 23.

Dalt. c. 98.

4 Com. 187.

be a distinction between an assault in the highway and an assault in a town. For in the first case it is said, that the person assaulted may justify killing the other without giving back at all; but that in the second case he ought to retreat as far as he can without apparently hazarding his life, in respect of the probability of getting assistance.

† And by 24 Hen. 8. c. 5. it is recited, "Forasmuch as it hath been in question and ambiguity, that if any evil-disposed person or persons do attempt feloniously to rob or murder any person or persons in or nigh any common highway, cartway, horseway, or footway, or in their mansions, messuages, or dwelling places; or that feloniously do attempt to break open any dwelling-house in the night-time; should happen, in the prosecution of such felonious intent, to be slain by him or them whom the said evil-doers should so attempt to rob or murder, or by any person or persons being in their dwelling-house, which the same evil-doers should so attempt burglarily to break by night, if the said person so happening in such cases to slay the offender so attempting to commit murder or burglary, should forfeit or lose his goods or chattels for the same, as any other person should do that by chance medley should happen to kill another in his or their defence." For the declaration of which ambiguity and doubt it is enacted, "That "whoever shall be indicted or appealed of or for the death of "such evil-disposed person or persons attempting to murder, "rob, or burglarily to break mansion-houses as aforesaid, shall "not forfeit any lands, tenements, goods, or chattels, but shall be "thereof, and for the same, fully acquitted and discharged.” (4)

Sect. 26. SECONDLY, Also the killing of an innocent person Bac. Elem. c. 5. in defence of a man's self, is said to be justifiable in some special cases; as if two be shipwrecked together, and one of them get upon a plank to save himself, and the other also, having no other means to save his life, get upon the same plank, and finding it not able to support them both, thrust the other from it, whereby he is drowned, it seems that he who thus preserves his own life at the expense of that of another, may justify the fact by the inevitable necessity of the case.

C. Car. 538.
March, 5.

Sect. 27. If a man be awakened in the night with an alarm that thieves are in his house, and searching for them in the dark with 1 Hale, 42, 43. his sword drawn, happen to kill a person lying hid in a part of the house, who in truth had no ill design, and was brought thither by a servant in order to assist in cleaning the house, it seemeth that he may justify the fact, inasmuch as it hath not the appearance of a fault.

(4) Not only the master of a house but a lodger or sojourner who kills an assailant intending to commit murder or robbery, is within the protection of this statute. Cro. Car. 544. But this reaches not to any crime unaccompanied with force, as picking of pockets; or to the breaking open of any house in the day time, unless it carry with it an attempt of robbery or arson. 4 Comm. 180. Vide 1 Hale, 488. And although it is the highest possible inva

CHAP.

sion of property, a man is not justifiable in killing another whom he taketh in adultery with his wife, for it savours more of sudden revenge than of selfpreservation; but this law hath been executed with great benignity. Vent. 159. Ray. 212. Prin. P. L. 212. If the husband, however, detect the ravisher in the attempt, the wife calling for assistance, it is excusable, se defendendo. 1 Hale, 486.

CHAP. XI.

OF EXCUSABLE HOMICIDE.

EXCUSABLE homicide is either per infortunium, or se defen- See 1 Hale, 38 dendo. In treating of which I shall first shew the nature of each to 41. 393. 492. of them distinctly, and then consider those properties wherein they both agree.

Sect. 1. HOMICIDE per infortunium, or by misadventure, is where a man in doing a lawful act (1), without any intent of hurt, unfortunately chances to kill another.

Sum. 31.
St. Tr. 3301.
Strange, 462.
Prin. P. L. 214

1 Hale, 472.

Sect. 2. As First, Where a labourer being at work with a 6 Ed. 4. 7. hatchet, the head thereof flies off, and kills one who stands by.

B. Cor. 59. 148.

4 Comm. 182.

Sect. 3. Secondly, Where a third person whips a horse on which Sum. 58, 59. a man is riding, whereupon he springs out, and runs over a child 1 Hale, 476. and kills him, in which case the rider is guilty of homicide per infortunium; and he who gave the blow, of manslaughter.

Sect. 4. Thirdly, Where a workman, having first given loud 1 Hale, 472. warning to all persons to stand clear, flings down a piece of tim- 475. Kely. 40. ber from a private house standing out of the road, and thereby Bract. 1. 3. c. 4. kills one who happens to be underneath :-but if any person fling Dalt. c. 96. down such a piece of timber idly in play, or even a workman fling B. Cor. 229. it down in the streets of a town, where the danger is apparent in respect of the number of people continually passing by, he is guilty of manslaughter.

1 Hale,454.473. Bract. 1. 1. c. 4. Dalt. c. 96.

Crom. 28.

Sect. 5. Fourthly, Where a schoolmaster in correcting his scholar, or a father his son, or a master his servant, or an officer in whipping a criminal condemned to such punishment, happen to occasion his death, yet if such persons in their correction be so Keilw. 136. barbarous as to exceed all bounds of moderation, and thereby Skin. 668. cause the party's death, they are guilty of manslaughter at the 5 M. 287, &c. Kely. 65. least (2); and if they make use of an instrument improper for correction, and apparently endangering the party's life, as an iron bar, or sword, &c. or kick him to the ground, and then stamp on his belly and kill him, they are guilty of murder.

Sect. 6. Fifthly, Where one lawfully using an innocent diversion, as shooting at butts, or at a bird, &c. by the glancing of an arrow, or such like accident, kills another.

Foster, 262.

Keilw. 108.
Kely. 41.

B. Cor. 148.

Prin. P. L. 226. 3 Wils. 407.

Sect. 7. Sixthly, Where a person happens to kill another in Keilw. 108. 136 playing a match of foot-ball, wrestling, or such like sports which Crom. 29. are attended with no apparent danger of life, and intended only 11 H. 7. 23. for the trial, exercise, and improvement, of the strength, courage, and activity of the parties.

Foster, 260.

Sect. 8. Seventhly, Where one kills another in fighting at bar- 11 H. 7. 23.

(1) Whether the act must be strictly lawful to bring the homicide within this description, vide Foster, 258, 259. 3 Inst. 56.

(2) So when an officer of the impress service fires at a boat in order to bring her to, and kills a man,

riers

it is impossible that the offender should be made guilty of more than manslaughter, especially if he fires in the manner usual upon such occasions. L Mansfield, Cowp. 352.

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