of a riot or rebellious assembly, the officers endeavouring to disperse the mob, are justifiable in killing them, at the common law; 4thly, where the prisoners in a jail, or going to jail, assault the jailor or officer, and he in his defence kills any of them, it is justifiable for the sake of preventing an escape. But in all these cases, there must be an apparent necessity on the officer's side, namely, that the party could not be arrested or apprehended, the riot could not be suppressed, the prisoners could not be kept in hold, unless such homicide were committed; otherwise, without such absolute necessity, it is not justifiable 5thly. In the next place, such homicide as is committed for the prevention of any forcible and atrocious crime, is justifiable. If any person attempts a robbery or murder of another, or attempts to break open a house in the night time, (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 day time, unless it carries with it an attempt of robbing also; for the law will not 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, you will observe that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be wholly acquitted and discharged with commendation rather than blame. But that is not quite the case in excusable homicide; the very name of which 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.

EXCUSABLE HOMICIDE.

Excusable homicide is of two sorts, either per infortunium, by misadventure, or se defendendo, upon a principle of self-preservation. First, 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 servant 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 case (according to the circumstances) murder. For the act of immoderate correction is unlawful.

Boxing and sword-playing are unlawful acts; and if either of the parties be killed therein, such killing is felony of manslaughter. 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 trespass, and at best a piece of idleness of inevitably dangerous consequence. And in general, if death ensues in consequence of any idle, dangerous, or 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.

Secondly, homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable rather than justifiable. This species of self-defence must be distinguished from that just now mentioned as that 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, 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) chaud 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 Henry 8, 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 law. Wherefore to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible means of escaping from his assailanta

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 antago nist, 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. The party assaulted must therefore fly 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 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 selfdefence, 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 rela tion assisting, being construed the same as the act of the part

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 in preference to that of another, when one of them must inevitably perish. As where two persons being shipwrecked, and getting on the same plank, but finding it not sufficient to save 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 exeusable 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.

In cases where the death has notoriously happened by mis adventure, or in self-defence, the judges win usually permit (if not direct) a general verdict of acquittal.

MANSLAUGHTER.

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. But in this there are also degrees of guilt which divide the offence into manslaughter and murder. Manslaughter arises from the sudden heat of the passions; murder from the wickedness of the heart.

Manslaughter is the unlawful killing of another without malice, either express or implied; which may be either voluntarliy, upon a sudden heat; or involuntarily, but in the commission of some unlawful act. And hence it follows, that in manslaughter there can be no accessories before the fact, because it must be done without premeditation.

As to the first, or voluntary branch. If upon a sudden quarrel two persons fight, and one of them kills the other, this is 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; and the law pays that regard to human frailty as not to put a hasty and deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor. Though this is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself, yet neither is it murder, for there is no previous malice; but it is manslaughter.

But in this and every other case of homicide upon provoca tion, if there must be a sufficient cooling time for passion to sub

side, and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder. So if a man takes another in the act of adultery with his wife, and kills him directly upon the spot, it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is manslaughter. It is however the lowest degree of manslaughter, and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation. Manslaughter therefore on a sudden provocation, differs from excusable homicide se defendendo, in this, that in one case there is an apparent necessity for self-preservation to kill the aggressor; in the other, no necessity at all, being only a sudden act of revenge.

The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure, in this, that misadventure always happens in consequence of a lawful act, but this species of manslaughter in consequence of an unlawful one. As if two persons play at sword and buckler, and one of them kills the other; this is manslaughter, because the original act was unlawful; but it is not murder, for the one had no intent to do the other any personal mischief. So where a person does an act lawful in itself, but in an unlawful manner, and without due caution and circumspection; as when a workman flings down a stone or piece of timber into the streets, and kills a man. This may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done. If it were in a country willage where few persons pass, and he call out to all people to tke care, it is misadventure only. But if it were in any populous town where people were continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing and gives no warning at all; for ther it is malice against all mankind. And in general when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent, it will be murder; but if no more was intended than a mere trespass, it will only amount to manslaugh

ter.

The crime of manslaughter amounts to felony, but within the benefit of clergy; and the offender shall be burnt in the hand, and forfeit all his goods and chattels.

But there is one species of manslaughter which is punished is murder, the benefit of clergy being taken away from it by