mer 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 Hen. VIII. c.5. and our ancient books', that it is properly applied to such killing as happens in self-defence upon a sudden rencounter ". This 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. Wherefore to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible (or, at least, probable) means of escaping from his assailant.

Ir is frequently difficult to distinguish this species of homicide (upon chance-medley in self-defence) from that of manslaughter, 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 has not begun the 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, [185] before he turns upon his assailant; and that not factitiously, 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

1 Staunf. P. C. 16. m 3 Inst. 55. 57.

n 3 Inst.55.

Fost. 275, 276.

• Fost. 277.

and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves P. In this the civil law also agrees with ours, or perhaps goes rather farther; " qui cum aliter tueri se non possunt, damni culpam "dederint, innoxii 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, without 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 flees; and, being driven to the wall, turns again upon B and kills him this may be se defendendo according to some of our [186] 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. (11) Under this

(11) The case here put doubtfully was stated absolutely a few sentences before, on the authority of Foster, p. 277., as a case of excusable self-defence. Foster says, as in the case of manslaughter upon sudden provocations, where the parties fight on equal terms, all malice apart, it mattereth not who gave the first blow; so in this case of excusable self-defence, I think the first assault in a sudden affray, all malice apart, will make no difference, if either party quitteth the combat, and retreateth before a mortal wound be given. In East's Pl. C. ch.v. § 53. the same doctrine is maintained.

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 assisting 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 preferably 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 expence 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. (12)

LET us next take a view of those circumstances wherein these 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 entitles it ne- [187] cessitas culpabilis, and thereby distinguishes it from the former necessity of killing a thief or a malefactor. For the law in

* 1 Hal. P. C. 484.

Elem. reg.5. See also 1 Hawk. P.C.

e. 28. § 26.

a

z 1 Hawk. P. C. c. 28. § 24.

■ Elem. reg.5.

(12) Conf. Cic. de Offic. l.iii. c. xxiii.

tends that the quarrel or assault arose from some unknown wrong, or some provocation, either in word or deed: and since in 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 that 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 so to do, shall in no case be absolutely free from guilt.

b

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 Mosaical law appointed certain cities of refuge for him “who "killed his neighbour unawares: as when a man goeth into "the wood with his neighbour to hew wood, and his hand "fetcheth a stroke with the ax to cut down the tree, and the "head slippeth from the helve, and lighteth upon his neigh"bour that he die, he shall flee unto 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, "annotatione principis:" otherwise the death of a man, however committed, was in some degree punishable. Among the Greeks homicide by misfortune was expiated [188] 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 homi

b Numb. c.35. and Deut. c.19.

Cod.9. 16.5.

d Plato, de Leg. lib.9.

To this expiation by banishment the spirit of Patroclus in Homer may be

thought to allude, when he reminds Achilles in the twenty-third Iliad, that when a child he was obliged to flee his country for casually killing his play-fellow; "vynis oùï ¿0eλwy.”

cide: 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. (13)

THE penalty inflicted by our laws is said by sir Edward Coke to have been antiently 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 say of all the goods and chattels, others of only 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 expence, 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, any age or sex, without justification or excuse. This may be done either by killing one's self, or another man.

of

(13) See ante, p. 181. n. 6. The French law adopts a distinction between homicide by misadventure, and excusable homicide, but the latter corresponds more exactly with our manslaughter than with our se defendendo, and is subjected to a heavier punishment. Homicide by awkwardness (maladresse), imprudence, inattention, negligence, inobservance of rules, must always be involuntary, which is not the case with homicide se defendendo; the punishment is imprisonment varying from three months to two years, and a fine from 60 to 600 francs. The French law has no division of this crime corresponding exactly with our se defendendo. Code Pénal, liv.iii. tit. 2. § 319.