signifies in general, the taking away of any person's life. It is of three kinds; justifiable, excusable, and felonious. The first has no share of Homicide guilt at all; the second very little; but the third is the highest crime against the law of nature that man is capable of committing.

I. Justifiable homicide is of divers kinds.

1. Such as is owing to some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence, in the party killing, and therefore without any shadow of blame; as, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put a malefactor to death, who hath forfeited his life by the laws and verdict of his country. This is an act of necessity, and even of civil duty; and therefore not only justifiable, but commendable, where the law requires it. But the law must require it, otherwise it is not justifiable; therefore wantonly to kill the greatest of malefactors, a felon, or a traitor, attainted or outlawed, deliberately, uncompeled, and extrajudicially, is murder. And farther, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder. Also such judgment, when legal, must be executed by the proper officer, or his appointed deputy; for no one else is required by law to do it, which requisition it is that justifies the homicide. If another person doth it of his own head, it is held to be murder; even though it be the judge himself. It must farther be executed, servato juris ordine; it must pursue the sentence of the court. If an officer beholds one who is adjudged to be hanged, or vice versa, it is murder; for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law. But, if a sheriff changes one kind of punishment for another, he then acts by his own authority, which extends not to the commission of homicide; and besides, this licence might occasion a very gross abuse of his power. The king indeed may remit part of a sentence, as in the case of treason, all but the beheading; but this is no change, no introduction of a new punishment; and in the case of felony, where the judgment is to be hanged, the king (it hath been said) cannot legally order even a peer to be beheaded.

Again: In some cases homicide is justifiable, rather by the permission, than by the absolute command, of the law: either for the advancement of public justice, which without such indemnification would never be carried on with proper vigour; or, in such instances where it is committed for the prevention of some atrocious crime, which cannot otherwise be avoided.

2. Homicides, committed for the advancement of public justice, are, 1. Where an officer, in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him. 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted; and, in the endeavour to take him, kills him. 3. In case of a riot, or rebellious assembly, the officers endeavouring to disperse the mob are justifiable in killing them, both at common law, and by the riot act, 1 Geo. I. c 5. 4. Where the prisoners in a gaol, or going to gaol, assault the gaoler or officer, and he in his defence kills any of them, it is justifiable, for the sake of preventing an escape. 5. If trespassers in forests, parks, chases, or warrens, will not surrender themselves to the keepers, they may be slain; by virtue of the statute Homicide. Edward I. st. 2. de malefactoribus in parvis, and 3 & 4 W. & M. c. 10. But, in all these cases, there must be an apparent necessity on the officer's side; viz. that the party could not be arrested or apprehended, the riot could not be suppressed, the prisoners could not be kept in hold, the deer-dealers could not but escape, unless such homicide were committed; otherwise, without such absolute necessity, it is not justifiable. 6. If the champions in a trial by battle killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, who was thereby presumed to have decided in favour of the truth.

3. In the next place, such homicide as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it is since declared by stat. 24 H. VIII. c. 5. If any person attempts a robbery or murder of another, or attempts to break open a house in the nighttime (which extends also to an attempt to burn it), and shall be killed in such attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets; or to the breaking open of any house in the daytime, unless it carries with it an attempt of robbery also. So the Jewish law, which punished no theft with death, makes homicide only justifiable in case of nocturnal house-breaking: "if a thief be found breaking up, and he be smitten that he die, no blood shall be shed for him; but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution." At Athens, if any theft was committed by night, it was lawful to kill the criminal, if taken in the fact; and, by the Roman law of the twelve tables, a thief might be slain by night with impunity; or even by day, if he armed himself with any dangerous weapon; which amounts very nearly to the same as is permitted by our own constitutions.

The Roman law also justifies homicide, when committed in defence of the chastity either of one's self or relations: and so also, according to Selden, stood the law in the Jewish republic. The English law likewise justifies a woman killing one who attempts to ravish her; and so too the husband or father may justify killing a man, who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent; for the one is forcible and felonious, but not the other. And there is no doubt but the forcibly attempting a crime, of a still more detestable nature, may be equally justified by the death of the unnatural aggressor. For the one uniform principle that runs through our own, and all other laws, seems to be this: That where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr Locke does; who holds, "that all manner of force without right upon a man's person, puts him in a state of war with the aggressor; and, of consequence, that, being in such a state of war, he may lawfully kill him that puts him under this unnatural restraint." However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.

In these instances of justifiable homicide, it may be observed, that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error, or omission; so trivial, however, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment.

II. Excusable homicide is of two sorts; either per infortunium, by misadventure; or se defendendo, upon a principle of self preservation. We will first see wherein these two species of homicide are distinct, and then wherein they agree.

1. Homicide per infortunium, or misadventure, is where a man, doing a lawful act, without any intention of hurt, unfortunately kills another; as where a man is at work with a hatchet, and the head thereof flies off and kills a stander-by; or, where a person, qualified to keep a gun, is shooting at a mark, and undesignedly kills a man; for the act is lawful, and the effect is merely accidental. So where a parent is moderately correcting his child, a master his apprentice or scholar, or an officer punishing a criminal, and happens to occasion his death, it is only misadventure; for the act of correction was lawful; but if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensues, it is manslaughter at least, and in some cases (according to the circumstances) murder; for the act of immoderate correction is unlawful. Thus by an edict of the emperor Constantine, when the rigour of the Roman law with regard to slaves began to relax and soften, a master was allowed to chastise his slave with rods and imprisonment, and if death accidentally ensued, he was guilty of no crime; but if he struck him with a club or a stone, and thereby occasioned his death, or if in any other yet grolier manner "immoderate jus jure utatur, tunc reus homicidii fit."

But to proceed. A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act; and to be boxing and sword-playing, the succeeding amusement of their posterity; and therefore, if a knight in the former case, or a gladiator in the latter, be killed, such killing is felony of manslaughter. But if the king command or permit such diversion, it is said to be only misadventure; for then the act is lawful: In like manner as, by the laws both of Athens and Rome, he who killed another in the pancration, or public games, authorized or permitted by the state, was not held to be guilty of homicide. Likewise to whip another's horse, whereby he runs over a child and kills him, is held to be accidental in the rider, for he has done nothing unlawful; but manslaughter in the person who whipped him, for the act was a trepans, and at best a piece of idleness, of inevitably dangerous consequence. And in general, if death ensues in consequence of an idle, dangerous, Homicide, and unlawful sport, as shooting or casting stones in a town, or the barbarous diversion of cock-throwing; in these and similar cases, the slayer is guilty of manslaughter, and not misadventure only; for these are unlawful acts.

2. Homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defence which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assaults him. And this is what the law expresses by the word chance-medley, or (as some rather choose to write it) chau'd-medley; the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion; both of them of pretty much the same import; but the former is in common speech too often erroneously applied to any manner of homicide by misadventure; whereas it appears by the statute 24 H. VIII. c. 5, and our ancient books, that it is properly applied to such killing as happens in self-defence upon a sudden encounter. The right of natural defence does not imply a right of attacking; for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Therefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible means of escaping from his assailant.

In some cases this species of homicide (upon chance-medley in self-defence) differs but little from manslaughter, which also happens frequently upon chance-medley in the proper legal sense of the word. But the true criterion between them seems to be this; when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter; but if the slayer hath not begun to fight, or (having begun) endeavours to decline any farther struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence. For which reason the law requires, that the person, who kills another in his own defence, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood. And though it may be cowardice, 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 king and his courts are the windless injurium, and will give to the party wronged all the satisfaction he deserves. In this the civil law also agrees with ours, or perhaps goes rather farther; "qui cum aliter tueri se non possunt, damni culpam dederint, innocui sunt." 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; for it may be so fierce as not to allow him to yield a step, with 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.

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 affray 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. But if A upon a sudden quarrel assaults B first, and, upon B's returning the assault, A really and bona 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; though others have thought this opinion too favourable: inasmuch as the necessity, to which he is at last reduced, originally arose from his own fault. 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 assailing being construed the same as the act of the party himself.

There is one species of homicide se defendendo, where the party slain is equally innocent as he who occasions his death: and yet this homicide is also excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferable to that of another, where one of them must inevitably perish. As, among others, in that case mentioned by lord Bacon, where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man's, is excusable through unavoidable necessity, and the principle of self-defence; since their both remaining on the same weak plank is a mutual, though innocent, attempt upon, and an endangering of, each other's life.

Let us next take a view of those circumstances wherein those two species of homicide, by misadventure and self-defence, agree; and those are in their blame and punishment. For the law sets so high a value upon the life of a man, that it always intends some misbehaviour in the person who takes it away, unless by the command or express permission of the law. In the case of misadventure, it presumes negligence, or at least a want of sufficient caution in him who was so unfortunate as to commit it; who therefore is not altogether faultless. And as to the necessity which excuses a man who kills another se defendendo, lord Bacon intitles it necessebus culpabilis, and thereby distinguishes it from the former necessity of killing a thief or a malefactor. For the law intends that the quarrel or assault arose from some unknown wrong, or some provocation, either in word or deed; and since in quarrrels, quarrels both parties may be, and usually are, in some fault; and it scarce can be tried who was originally in the wrong; the law will not hold the survivor entirely guiltless. But it is clear, in the other case, that where I kill a thief who breaks into my house, the original default can never be upon my side. The law besides may have a farther 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 to do so, shall in no case be absolutely free from guilt.

Nor is 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 Mosaic law appointed certain cities of refuge for him "who killed his neighbour unawares; as if a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the ax to cut down a tree, and the head slippeth from the helve, and lighteth upon his neighbour that he die, he shall flee into one of those cities and live." 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. Among the Greeks, homicide by misfortune was expiated by voluntary banishment for a year. In Saxony, a fine is paid to the kindred of the slain; which also, among the western Goths, was little inferior to that of voluntary homicide; and in France, no person is 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.

The penalty inflicted by our laws is said by Sir Edward Coke to have been anciently no less than death; which, however, is with reason denied by later and more accurate writers. It seems rather to have consisted in a forfeiture, some part of all the goods and chattels, others of only a part of them, by way of fine or weregild; which was probably disposed of, as in France, in pios usus, according to the humane superstition of the times, for the benefit of his soul who was thus 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 has become more considerable, the delinquent has now, and has 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. And, indeed, to prevent this expense, in cases where the death has notoriously happened by misadventure or in self-defence, the judges will usually permit (if not direct) a general verdict of acquittal.

III. 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; for the consideration of which, see the articles Self Murder, Murder, and Manslaughter.