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ting at the time when the mortal stroke is given, the slayer is then guilty of manslaughter ; but if the slayer hath not begun the fight, or (having begun) endeavors to decline any further struggle, and afterward, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defense.
28, Horo far does the lar require the person assaulted to retreat before he turns upon the assailant ?-185.
As far as he conveniently or safely can, to avoid the violence of the assault ; and that not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood.
29. What if the assault be so fierce as not to allow the party asszulted to yield a step ?-185.
If he may not so yield without manifest danger of his life, or enormous bodily harm, he may kill his assailant instantly.
30. 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.; is it murder in B.?—185.
It is murder, because of the previous malice and concerted design.
31. What 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 ?-185, 186.
This may be se defendendo, according to some of our writers; though others have thought this opinion too favorable, inasmuch as the necessity, to which he is at last reduced, originally arose from his own fault.
32. What civil and natural relations are comprehended under this Ermuse of self-defense ?–186.
The principal civil and natural relations are comprehended; therefore, master and servant, parent and child, husband and wife, killing an assailant in the necessary defense of each other respectively, are excused ; the act of the relation assisting being construed the same as the act of the party himself.
33. Is there not one species of homicide se defendendo, where the party slain is equally innocent as he who occasions his death?—186
Yes; where one of them must inevitably perish ; 'as where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrust the other from it, whereby he is drowned. This homicide is excusable through unavoidable necessity, and the principle of self-defense.
34. Wherein do the two species of homicide, by misadventure and self-defense, agree?—186.
They agree in their blame and punishment ; for the law sets so high a value upon the life of a man, that it always intends some misbehavior in the person who takes it away, unless by the command or express permission of the law.
35. What does the law always presume in homicide by misadventure ?—186.
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.
36. What does Lord Bacon entitle that necessity which excuses a man who kills another se defendendo ?-187.
He entitles it necessitas culpabilis, and thereby distinguishes it from the necessity of killing a thief, or a malefactor.
37. In case of homicide se defendendo, what does the laro intend ! -187.
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.
38. What further view may our law have in ordaining, that ho oho sluys his neighbor, without an express warrant from the law so to do, shall in no case be absolutely free from guilt ?-187.
It may have a further view to make the crime of homicide more odious, and to caution men how they venture to kill an. other upon their own private judgment. 39. Is the English law singular in this respect ?-187.
It is not. Even the slaughter of enemies required, among the Jews, a solemn purgation ; 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 neighbor unawares; as if a man goeth into the wood with his neighbor to hew wood, and his hand fetcheth a stroke with the axe to cut down a tree, and the head slippeth from the helve, and lighteth upon his neighbor that he die, he shall flee unto one of these 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 afterward 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 signmanual," annotatione 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 to be 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 was 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. 40. What is the penalty for homicide?—188.
In cases where the death has plainly happened by misadventure, or in self-defense, the judges will usually permit, if not direct, a general verdict of acquittal.
41. What is felonious homicide ?–188.
It is the killing a human creature, of any age or sex, without justification or excuse. This may be done by killing one's self or another man.
12. Who is a felo de se ?–189.
He that deliberately puts an end to his own existence, or
commits any unlawful malicious act, the consequence of which is his own death.
43. What, by the Athenian law, was the punishment for attempt ing self-murder ?–189.
Cutting off the hand which committed the desperate deed.
44. Horo does the laro of England regard self-murder ?—189.
It wisely and religiously considers that no man hath power to destroy life but by commission from God, the author of it ; and, as the suicide is guilty of a double offense, one spiritual, in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects, the law has therefore ranked this among the higbest crimes, making it a peculiar spectes of felony, a felony committed on one's self.
45. Does self-murder admit of accessaries before the fact ?–189.
It does, as well as other felonies, admit of such accessaries, for if one persuade another to kill himself, and he does so, the adviser is guilty of murder.
46. When is felo de se a crime, and when not ?–189, 190.
The party must be of years of discretion, and in his right mind, else it is no crime. The law judges that every melancholy or hypochondriac fit does not deprive the man of the capacity of discerning right from wrong, which is necessary to form a legal excuse ; and, therefore, if a real lunatic kills himself in a lucid interval, he is a felo de se as much as any other man. 47. How is self-murder punished ?-190.
Human laws can only act upon what the felo de se has left behind him, his reputation and fortune ; on the former, by an ignominious burial in the highway, with a stake driven through his body; on the latter, by a forfeiture of all his goods and chattels to the king.
48. What motive has the law in thus punishing self-murder :190.
It hopes that care for either his own reputation, or the wel. fare of his family, would be some motive to restrain one from so desperate and wicked an act.
49. To what time has the forfeiture, in case of self-murder, relation back ?–190.
To the time of the act done in the felon's life time, which was the cause of his death; as if husband and wife be possessed jointly of a term of years in land, and the husband drowns himself; the land shall be forfeited to the king, because the wife's title by survivorship could not accrue till her husband's death.
50. What other species of criminal homicide is there ?–190.
That of killing another man.
51. How does the degree of guilt in killing another divide the of. fense ?—190.
Into manslaughter, which, when voluntary, arises from the sudden heat of the passions ; and murder, which arises from the wickedness of the heart.
52. How is manslaughter defined ?–191.
The unlawful killing of another without malice, either express or implied. It may be either voluntary, upon a sudden heat ; or involuntary, but in the commission of some unlawful act.
53. Can there be accessaries before the fact, in manslaughter ? 191.
There can be no accessaries before the fact, because it must be done without premeditation.
54. When is manslaughter voluntary ?–191.
If upon a sudden quarrel two persons figbt, and one of them kills the other, this is voluntary manslaughter; and so it is if they, upon such an occasion, go out and fight in a field, for this is one continued act of passion. But, in every case of homicide upon provocation, if there be a sufficient cooling time for passion to subside and reason to interpose, and the person so provoked afterward kills the other, this is deliberate revenge, and not beat of blood, and amounts to murder.