Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
IN the ten preceding chapters we have considered, first, such crimes and misdemeanors as are more immediately injurious to God and his holy religion; secondly, such as violate or transgress the law of nations; thirdly, such as more especially affect the king, the father and representative of his people; fourthly, such as more directly infringe the rights of the public or commonwealth, taken in its collective capacity; and are now, lastly, to take into consideration those which in a more peculiar manner affect and injure individuals or private subjects.
WERE these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely under the notion of private wrongs; for which a satisfaction would be due only to the party injured: the manner of obtaining which was the subject of our inquiries in the preceding volume. But the wrongs, which we are now to treat of, are of a much more extensive consequence; 1. Because it is impossible they can be committed without a violation of the laws of nature; of the moral as well as political rules of right: 2. Because they include in them almost always a breach of the public peace: 3. Because by their example and evil tendency they threaten and endanger the subversion of all civil society. Upon these accounts it is, that, besides the private satisfaction due and given in may cases to the individual, by action for the private wrong, the government also calls upon the offender to submit to public punishment for the public crime. And the prosecution of these offenses is always at the suit and in the name of the king, in whom by the texture of our constitution the jus gladii, or executory power of the law, entirely resides. Thus too, in the old Gothic constitution, there was a threefold punishment inflicted on all delinquents: first, for the private wrong to the party injured; secondly, for the offense against the king by disobedience to the laws; and thirdly, for the crime against the public by their evil example.1 Of which we may trace the groundwork, in what Tacitus tells us of his Germans;2 that, whenever offenders were fined, “pars mulctae regi, vel civitati, pars ipsi qui vindicatur vel propinquis ejus, exsolvitur.”
THESE crimes and misdemeanors against private subjects are principally of three kinds; against their persons, their habitations, and their property.
OF crimes injurious to the persons of private subjects, the most principal and important is the offense of taking away that life, which is the immediate gift of the great creator; and which therefore no man can be entitled to deprive himself or another of, but in some manner either expressly commanded in, or evidently deducible from, those laws which the creator has given us; the divine laws, I mean, of either nature or revelation. The subject therefore of the present chapter will be, the offense of homicide or destroying the life of man, in its several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it.
NOW homicide, or the killing of any human creature, is of three kinds; justifiable, excusable, and felonious. The first has no share of 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 diverse 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 has 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, uncompelled, and extrajudicially, is murder.3 For as Bracton4 very justly observes, “istud homicidium si sit ex livore, vel delectatione essundendi humanum sanguinem, licet juste occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam.” 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.5 and upon this account Sir Matthew Hale himself, though he accepted the place of a judge of the common pleas under Cromwell’s government (since it is necessary to decide the disputes of civil property in the worst of times) yet declined to sit on the crown side at the assizes, and try prisoners; having very strong objections to the legality of the usurper’s commission:6 a distinction perhaps rather too refined; since the punishment of crimes is at least as necessary to society, as maintaining the boundaries of property. 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 does it of his own head, it is held to be murder:7 even though it be the judge himself.8 It must
farther be executed, servato juris ordine; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versa, it is murder:9 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 death for another, he then acts by his own authority, which extends not to the commission of homicide: and, besides, this license 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 has been said) cannot legally order even a peer to be beheaded.10 But this doctrine will be more fully considered in a subsequent chapter.
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 vigor; or, in such instances where it is committed for the prevention of some atrocious crime, which cannot otherwise 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.11 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted; and, in the endeavor to take him, kills him.12 This is of a piece with the old Gothic constitutions, which (Stiernhook informs us13) “surem, si aliter capi non posset, occidere permittunt“. 3. In case of a riot, or rebellious assembly, the officers endeavoring to disperse the mob are justifiable in killing them, both at common law,14 and by the riot act, 1 Geo. I. c. 5. 4. Where the prisoners in a jail, or going to jail, assault the jailer or officer, and he in his defense kills any of them, it is justifiable, for the sake of preventing an escape.15 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 21 Edw. I. St. 2. de malefactoribus in parcis, 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-stealers 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 perfumed to have decided in favor of the truth.16
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;17 and also by the law of England, as it stood so early as the time of Bracton,18 and as it is since declared by statute 24 Hen. VIII. c. 5. If any person attempt to burn it,19) 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 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.”20 At Athens, if any theft was committed by night, it was lawful to kill the criminal, if taken in the fact:21 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:22 which amounts very nearly to the same as is permitted by our own constitutions.
THE Roman law also justifies homicide, when committed in defense of the chastity either of oneself or relations:23 and so also, according to Selden,24 stood the law in the Jewish republic. The English law likewise justifies a woman, killing one who attempts to ravish her:25 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.26 And I make no doubt but the forcibly attempting a crime, of a still more detestable nature, may be equally resisted 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 endeavored 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,27 “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, you will observe 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 bystander; or, where a person, qualified to keep a gun, is shooting at a mark, and undesignedly kills a man:28 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 cases (according to the circumstances) murder;29 for the act of immoderate correction is unlawful. Thus by an edict of the emperor Constantine,30 when the rigor 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 grosser manner “immoderate suo jure utatur, tunc reus homicidii sit.”
BUT to proceed. A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act; and so are boxing and swordplaying, 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.31 In like manner as, by the laws both of Athens and Rome, he who killed another in the pancratium, or public games, authorized or permitted by the state, was not held to be guilty of homicide.32 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.33 And in general, if death ensues in consequence of any idle, dangerous, 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.34
2. HOMICIDE in self-defense, or se defendendo, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defense 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-defense, 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) 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 Hen. VIII. c. 5. and our ancient books,35 that it is properly applied to such killing, as happens in self-defense upon a sudden reencounter.36 This right of natural defense 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 defense, 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-defense, 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-defense) differs but little from manslaughter, which also happens frequently upon chance-medley in the proper legal sense of the word.37 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 to fight, or (having begun) endeavors 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-defense.38 For which reason the law requires, that the person, who kills another in his own defense, 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, no fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother’s blood. And though it may he 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 honor: because the king and his courts are the vindices injuriarum, and will give too the party wronged all the satisfaction he deserves.39 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.”40 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:41 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 defense he may kill his assailant instantly. And this is the doctrine of universal justice,42 as well as of the municipal law.
AND, as the manner of the defense, 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 defense. Neither, under the color of self defense, 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.43 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 writers:44 though others45 have thought this opinion too favorable; inasmuch as the necessity, to which he is at last reduced, originally arose from his own fault. Under this excuse of self-defense, 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.46
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,47 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 though unavoidable necessity, and the principle of self-defense; 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 these two species of homicide, by misadventure and self-defense, 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 misbehavior, it perfumes 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.48 And as to the necessity which excuses a man who kills another se defendendo, lord Bacon49 entitles it necessitas 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 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 neighbor, without an express warrant from the law so to do, 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 law50 appointed certain cities of refuge for him “who killed his neighbor unawares; as if a man goes into the wood with his neighbor to hew wood, and his hand fetches a stroke with the ax to cut down a tree, and the head slips from the helve, and lights 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 afterwards stirred out of it till the death of the high priest. In the imperial law likewise51 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 Greeks52 homicide by misfortune was expiated by voluntary banishment for a year.53 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:54 and in France55 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;56 which however is with reason denied by later and more accurate writers.57 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:58 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,59 a pardon and writ of restitution of his goods as a matter of course and right, only paying for suing out the same.60 And indeed, to prevent this expense, in cases where the death has notoriously happened by misadventure or in self-defense, the judges will usually permit (if not direct) a general verdict of acquittal.61
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.
SELF-MURDER, the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure, though the attempting it seems to be countenanced by the civil law,62 yet was punished by the Athenian law with cutting off the hand, which committed the desperate deed.63 And also the law of England wisely and religiously considers, that no man has a 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 invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who has an interest in the preservation of all his subjects; the law has therefore ranked this among the highest, crimes, making it a peculiar species of felony, a felony committed on oneself. A felo de se therefore is he that deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death: as if, attempting to kill another, he runs upon his antagonist’s sword; or, shooting at another, the gun bursts and kills himself.64 The party must be of years of discretion, and in his senses, else it is no crime. But this excuse ought not to be strained to that length, to which our coroners’ juries are apt to carry it, viz. that the very act of suicide is an evidence of insanity; as if every man who acts contrary to reason, had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer. The law very rationally judges, that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed in a former chapter,65 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 another man.66
BUT now the question follows, what punishment can human laws inflict on one who has withdrawn himself from their reach? They can only act upon what he 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: hoping that his care for either his own reputation, or the welfare of his family, would be some motive to restrain him from so desperate and wicked an act. And it is observable, that this forfeiture has relation to the time of the act done in the felon’s lifetime, 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, and the wife shall not have it by survivorship. For by the act of casting himself into the water he forfeits the term; which gives a title to the king, prior to the wife’s title by survivorship, which could not accrue till the instant of her husband’s death.67 And, though it must be owned that the letter of the law herein borders a little upon severity, yet it is some alleviation that the power of mitigation is left in the breast of the sovereign, who upon this (as on all other occasions) is reminded by the oath of his office to execute judgment in mercy.
THE other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt, which divide the offense into manslaughter, and murder. The difference between which may be partly collected from what has been incidentally mentioned in the preceding articles, and principally consists in this, that manslaughter arises from the sudden heat of the passions, murder from the wickedness of the heart.
I. MANSLAUGHTER is therefore thus defined,68 the unlawful killing of another, without malice either express or implied: which may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act. These were called in the Gothic constitutions “homicidia vulgaria; quae aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiae calore et impetu.”69 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:70 and the law pays that regard to human frailty, as not to put a hasty and a 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.71 But in this, and in every other 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 afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder.72 So, if a man takes another in the act of adultery with his wife, and kills him directly upon the spot; though this was allowed by the laws of Solon,73 as likewise by the Roman civil law, (if the adulterer was found in the husband’s own house74) and also among the ancient Goths;75 yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is manslaughter.76 It is however the lowest degree of it: 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.77 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, unless by the king’s command, 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.78 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 street, 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 village, where few passengers are, and he calls out to all people to have a care, it is misadventure only: but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning;79 and murder, if he knows of their passing and gives no warning at all, for then it is malice against all mankind.80 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 manslaughter.81
NEXT, as to the punishment of this degree of homicide: 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 as murder, the benefit of clergy being taken away from it by statute; namely, the offense of mortally stabbing another, though done upon sudden provocation. For by statute 1 Jac. I. c. 8. when one thrusts or stabs another, not then having a weapon drawn, or who has not then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought. This statute was made on account of the frequent quarrels and stabbings with short daggers, between the Scotch and the English, at the accession of James the first;82 and, being therefore of a temporary nature, ought to have expired with the mischief, which it meant to remedy. For, in point of solid and substantial justice, it cannot be said that the mode of killing, whether by stabbing, strangling or shooting, can either extenuate or enhance the guilt: unless where, as in the case of poisoning, it carries with it an internal evidence of cool and deliberate malice. But the benignity of the law has construed the statute so favorably in behalf of the subject, and so strictly when against him, that the offense of stabbing stands almost upon the same footing, as it did at the common law.83 thus, (not to repeat the cases before-mentioned, of stabbing an adulteress, etc. which are barely manslaughter, as at common law) in the construction of this statute it has been doubted, whether, if the deceased had struck at all before the mortal blow given, this takes it out of the statute, though in the preceding quarrel the stabber had given the first blow; and it seems to be the better opinion, that this is not within the statute84Also it has been resolved, that the killing a man by throwing a hammer or other weapon is not within the statute; and whether a shot with a pistol be so or not, is doubted85But if the party slain had a cudgel in his hand, or had thrown a pot or a bottle or discharged a pistol at the party stabbing, this is a sufficient having a
weapon drawn on his side within the words of the statute.86
2. WE are next to consider the crime of deliberate and wilful murder; a crime at which human nature starts, and which is I believe punished almost universally throughout the world with death. The words of the Mosaic law (over and above the general precept to Noah,87 that “whoso sheds man’s blood, by man shall his blood be shed”) are very emphatic in prohibiting the pardon of murderers.88 “Moreover ye shall take no satisfaction for the life of a murderer, who is guilty of death, but he shall surely be put to death; for the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.” And therefore out law has provided one course of prosecution, (that by appeal, of which hereafter) wherein the king himself is excluded the power of pardoning murder: so that, were the king of England so inclined, he could not imitate that Polish monarch mentioned by Pufendorf;89 who thought proper to remit the penalties of murder to all the nobility, in an edict with this arrogant preamble, “nos, divini juris rigorem moderantes, etc.“. But let us now consider the definition of this great offense.
THE name of murder was anciently applied only to the secret killing of another;90 (which the word, mo rda, signifies in the Teutonic language91) and it was defined “homicidium quod nullo vidente, nullo sciente, clam perpetratur“92: for which the vill wherein it was committed, or (if that were too poor) the whole hundred, was liable to a heavy amercement; which amercement itself was also denominated murdrum.93 This was an ancient usage among the Goths in Sweden and Denmark; who supposed the neighborhood, unless they produced the murderer, to have perpetrated or at least connived at the murder:94 and, according to Bracton,95 was introduced into this kingdom by king Canute, to prevent his countrymen the Danes from being privily murdered by the English; and was afterwards continued by William the conqueror, for the like security to his own Normans.96 And therefore if, upon inquisition had, it appeared that the person found slain was an Englishman, (the presentment whereof was denominated englescherie97) the country seems to have been excused from this burden. But, this difference being totally abolished by statute 14 Edw. III. c. 4. we must now (as is observed by Staundforde98) define murder in quite another manner, without regarding whether the party slain was killed openly or secretly, or whether he was of English or foreign extraction.
MURDER is therefore now thus defined, or rather described, by Sir Edward Coke;99 “when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king’s peace, with malice aforethought, either express or implied.” The best way of examining the nature of this crime will be by considering the several branches of this definition.
FIRST, it must be committed by a person of sound memory and discretion: for a lunatic or infant, as was formerly observed, are incapable of committing any crime; unless in such cases where they show a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil.
NEXT, it happens when a person of such sound discretion unlawfully kills. The unlawfulness arises from the killing without warrant or excuse: and there must also be an actual killing to constitute murder; for a bare assault, with intent to kill, is only a great misdemeanor, though formerly it was held to be murder.100 The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. Of these the most detestable of all is poison; because it can of all others be the least prevented either by manhood or forethought.101 And therefore by the statute 22 Hen. VIII. c. 9. it was made treason, and a more grievous and lingering kind of death was inflicted on it than the common law allowed; namely, boiling to death; but this act did not live long, being repealed by 1 Edw. VI. c. 12. There was also, by the ancient common law, one species of killing held to be murder, which is hardly so at this day, nor has there been an instance wherein it has been held to be murder for many ages past:102 I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed.103 The Gothic laws punished in this case, both the judge, the witnesses, and the prosecutor; “peculiari poena judicem puniunt; peculiari testes, quorum fides judicem seduxit; peculiari denique et maxima auctorem, ut homicidam.”104 And, among the Romans, the lex Cornelia, de sicariis, punished the false witness with death, as being guilty of a species of assassination105And there is no doubt but this is equally murder in foro conscientiae as killing with a sword; though the modern law (to avoid the danger of deterring witnesses from giving evidence upon capital prosecutions, if it must be at the peril of their own lives) has not yet punished
it as such. If a man however does such an act, of which the probable consequence may be, and eventually is, death; such killing may be murder, although no stroke be struck by himself: as was the case of the unnatural son, who exposed his sick father to the air, against his will, by reason whereof he died;106 and, of the harlot, who laid her child in an orchard, where a kite struck it and killed it.107 So too, if a man has a beast that is used to do mischief; and he, knowing it, suffers it to go abroad, and it kills a man; even this is manslaughter in the owner: but if he had purposely turned it loose, though barely to frighten people and make what is called sport, it is with us (as in the Jewish law) as much murder, as if he had incited a bear of a dog to worry them.108 If a physician or surgeon gives his patient a potion or plaster to cure him, which contrary to expectation kills him, this is neither murder, nor manslaughter, but misadventure; and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance:109 but it has been held, that if it be not a regular physician or surgeon, who administers the medicine or performs the operation, it is manslaughter at the least.110 Yet Sir Matthew Hale very justly questions the law of this determination; since physic and salves were in use before licensed physicians and surgeons: wherefore he treats this doctrine as apocryphal, and fitted only to gratify and flatter licentiates and doctors in physic; though it may be of use to make people cautious and wary, how they meddle too much in so dangerous an employment.111 In order also to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered; in the computation of which, the whole day upon which the hurt was done shall be reckoned the first.112
FARTHER; the person killed must be “a reasonable creature “in being, and under the king’s peace,” at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are all under the king’s peace or protection, is as much murder as to kill the most regular born Englishman; except he be an alien-enemy, in time of war.113 To kill a child in its mother’s womb, is now no murder, but a great misprision: but if the child be born alive, and dies by reason of the potion or bruises it received in the womb, it is murder in such as administered or gave them.114 But, as there is one case where it is difficult to prove the child’s being born alive, namely, in the case of the murder of bastard children by the unnatural mother, it is enacted by statute 21 Jac. I. c. 27. that if any woman be delivered of a child, which if born alive should by law be a bastard; and endeavors privately to conceal its death, by burying the child or the like; the mother so offending shall suffer death as in the case of murder, unless she can prove by one witness at least that the child was actually born dead. This law, which favors pretty strongly of severity, in making the concealment of the death almost conclusive evidence of the child’s being murdered by the mother, is nevertheless to be also met with in the criminal codes of many other nations of Europe; as the Danes, the Swedes, and the French:115 but I apprehend it has of late years been usual with us in England, upon trials for this offense to require some sort of presumptive evidence that the child was born alive, before the other constrained presumption (that the child, whose death is concealed, was therefore killed by its parent) is admitted to convict the prisoner.
LASTLY, the killing must be committed with malice aforethought, to make it the crime of murder. This is the grand criterion, which now distinguishes murder from other killing: and this malice prepense, malitia praecogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved, and malignant heart;116 un disposition a faire un male chose.117 and it may be either express, or implied in law. Express malice is when one, with a sedate deliberate mind and formed design, does kill another: which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.118 This takes in the case of deliberate dueling, where both parties meet avowedly with an intent to murder: thinking it their duty, as gentlemen, and claiming it as their right, to wanton with their won lives and those of their fellow creatures; without any warrant or authority from any power either divine or human, but in direct contradiction to the laws both of God and man: and therefore the law has justly fixed the crime and punishment of murder, on them, and on their seconds also.119 Yet it requires such a degree of passive valor, to combat the dread of even undeserved contempt, arising from the false notions of honor too generally received in Europe, that the strongest prohibitions and penalties of the law will never be entirely effectual to eradicate this unhappy custom; till a method be found out of compelling the original aggressor to make some other satisfaction to the affronted party, which the world shall esteem equally reputable, as that which is now given at the hazard of the life and fortune, as well of the person insulted, as of him who has given the insult. Also, if even upon a sudden provocation one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder
by express malice; that is, by an express evil design, the genuine sense of malitia. As when a park-keeper tied a boy, that was stealing wood, to a horse’s tail, and dragged him along the park; when a master corrected his servant with an iron bar, and a schoolmaster stamped on his scholar’s belly; so that each of the sufferers died; these were justly held to be murders, because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter.120 Neither shall he be guilty of a less crime, who kills another in consequence of such a wilful act, as shows him to be an enemy to all mankind in general; as going deliberately with a horse used to strike, or discharging a gun, among a multitude of people.121 so if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice. And, if two or more come together to do an unlawful act against the king’s peace, of which the probable consequence might be bloodshed; as to beat a man, to commit a riot, or to rob a park; and one of them kills a man; it is murder in them all, because of the unlawful act, the malitia praecogitata, or evil intended beforehand.122
ALSO in many cases where no malice is expressed, the law will imply it: as, where a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved.123 And if a man kills another suddenly, without any; or without a considerable provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act, upon a slight or no apparent cause. No affront, by words, or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another.124 But if the person so provoked had unfortunately killed the other, by beating him in such a manner as showed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behavior, as adjudge it only manslaughter, and not murder.125 In like manner if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavoring to conserve the peace, or any private person endeavoring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be guilty of murder.126 And if one intends to do another felony, and undesignedly kills a man, this is also murder.127 Thus if one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case, where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder.128 It were endless to go through all the cases of homicide, which have been adjudged either expressly, or impliedly, malicious: these therefore may suffice as a specimen; and we may take it for a general rule, that all homicide is malicious, and of
course amounts to murder, unless where justified by the command or permission of the law; excused on a principle of accident or self-preservation; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful or (if voluntary) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury: the latter of whom are to decide whether the circumstances alleged be proved to have actually existed; the former, how far they extend to take away or mitigate the guilt. For all homicide is presumed to be malicious, until the contrary appears upon evidence.129
THE punishment of murder, and that of manslaughter, were formerly one and the same; both having the benefit of clergy: so that none but unlearned persons, who least knew the guilt of it, were put to death for this enormous crime.130 But now, by statute 23 Hen. VIII. c. 1. and 1 Edw. VI. c. 12. the benefit of clergy is taken away from murder though malice prepense. In atrocious cases it was frequently usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains, near the place where the fact was committed: but this was no part of the legal judgment; and the like is still sometimes practiced in the case of notorious thieves. This, being quite contrary to the express command of the Mosaic law,131 seems to have been borrowed from the civil law; which, besides the terror of the example, gives also another reason for this practice, viz. that it is a comfortable sight to the relations and friends of the deceased.132 But now in England, it is enacted by statute 25 Geo II. c. 37. that the judge, before whom a murderer is convicted, shall in passing sentence direct him to be executed on the next day but one, (unless the same shall be Sunday, and then on the Monday following) and that his body be delivered to the surgeons to be dissected and anatomized;133 and that the judge may direct his body to be afterwards hung in chains, but in no wise to be buried without dissection. And, during the short but awful interval between sentence and execution, he prisoner shall be kept alone, and sustained with only bread and water. But a power is allowed to the judge, upon good and sufficient cause, to respite the execution, and relax the other restraints of this act.
BY the Roman law, parricide, or the murder of one’s parents or children, was punished in a much severer manner than any other kind of homicide. After being scourged, the delinquents were sewed up in a leather sack, with a live dog, a cock, a viper, and an ape, and so cast into the sea.134 Solon, it is true, in his laws, made none against parricide; apprehending it impossible that any one should be guilty of so unnatural a barbarity.135 And the Persians, according to Herodotus, entertained the same notion, when they adjudged all persons who killed their reputed parents to be bastards. And, upon some such reason as this, must we account for the omission of an exemplary punishment for this crime in our English laws; which treat it no otherwise than as simple murder, unless the child was also the servant of his parent.136
FOR, though the breach of natural relation is unobserved, yet the breach of civil or ecclesiastical connections, when coupled with murder, denominates it a new offense; no less than a species of treason, called parva proditio, or petit treason: which however is nothing else but an aggravated degree of murder;137 although, on account of the violation of private allegiance, it is stigmatized as an inferior species of treason.138 And thus, in the ancient Gothic constitution, we find the breach both of natural and civil relations ranked in the same class with crimes against the state and the sovereign.139
PETIT treason, according to the statute 25 Edw. III. c. 2. may happen three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular, or regular) his superior, to whom he owes faith and obedience. A servant who kills his master whom he has left, upon a grudge conceived against him during his service, is guilty of petit treason: for the traitorous intention was hatched while the relation subsisted between them; and this is only an execution of that intention.140 So if a wife be divorced a mensa et thoro, still the vinculum matrimonii subsists; and if she kills such divorced husband, she is a traitress.141 And a clergyman is understood to owe canonical obedience, to the bishop who ordained him, to him in whose diocese he is beneficed, and also to the metropolitan of such suffragan or diocesan bishop: and therefore to kill any of these is petit treason.142 As to the rest, whatever has been said, or remains to be observed hereafter, with respect to wilful murder, is also applicable to the crime of petit treason, which is no other than murder in its most odious degree: except that the trial shall be as in cases of high treason, before the improvements therein made by the statutes of William III;143 and also except in its punishment.
THE punishment of petit treason, in a man, is to be drawn and hanged, and, in a woman, to be drawn and burned:144 the idea of which latter punishment seems to have been handed down to us from the laws of the ancient Druids, which condemned a woman to be burned for murdering her husband;145 and it is now the usual punishment for all sorts of treasons committed by those of the female sex.146 Persons guilty of petit treason were first debarred the benefit of clergy by statute 12 Hen. VII. C. 7.
1. Stiernhook. l. 1. c. 5.
2. de mor. Germ. c. 12.
3. 1 Hal. P. C. 497.
4. fol. 120.
5. 1 Hawk. P. C. 70. 1 Hal. P. C. 497.
6. Burnet in his life.
7. 1 Hal. P. C. 501. 1 Hawk. P. C. 70.
8. Dalt. Just. c. 150.
9. Finch. L. 31. 3 Inst. 52. 1 Hal. P. C. 501.
10. 3 Inst. 52. 212.
11. 1 Hal. P. C. 494. 1 Hawk. P. C. 71.
12. 1 Hal. P. C. 494.
13. de jure Goth. l. 3. c. 5.
14. 1 Hal. P. C. 495. 1 Hawk. P. C. 161.
15. 1 Hal. P. C. 496.
16. 1 Hawk. P. C. 71.
17. Puff. L. of N. l. 2. c. 5.
18. fol. 155.
19. 1 Hal. P. C. 488.
20. Exod. Xxii. 2.
21. Potter. Antiqu. b. 1. c. 24.
22. Cic. pro Milone. 3. Ff. 9. 2. 4.
23. “Divus Hadrianus rescripsit, eum qui stuprum sibi vel suis inferentem occidit, dimittendum.” (Ff. 48. 8. 1.)
24. de legib. Hebraeor. l. 4. c. 3.
25. Bac. Elem. 34. 1 Hawk. P. C. 71.
26. 1 Hal. P. C. 485, 486.
27. Ess. on gov. p. 2. c. 3.
28. 1 Hawk. P. C. 73, 74.
29. 1 Hal. P. C. 473, 474.
30. Cod. L. 9. t. 14.
31. 1 Hal. P. C. 473. 1 Hawk. P. C. 74.
32. Plato de LL. lib. 7. Ff. 9. 2. 7.
33. Hawk. P. C. 73.
34. Ibid. 74. 1 Hal. P. C. 472. Fost. 261.
35. Staundf. P. C. 16.
36. 3 Inst. 55. 57. Fost. 275. 276.
37. 3 Inst. 55.
38. Fost. 277.
39. 1 Hal. P. C. 481. 483.
40. Ff. 9. 2. 45.
41. 1 Hal. P. C. 483.
42. Puff. b. 2. c. 5. § 13.
43. 1 Hal. P. C. 479.
44. 1 Hal. P. C. 482.
45. 1 Hawk. P. C. 75.
46. 1 Hal. P. C. 484.
47. Elem. c. 5. See also 1 Hawk. P. C. 73.
48. 1 Hawk. P. C. 72.
49. Elem. c. 5.
50. Numb. c. 35. and Dcut. c. 19.
51. Cod. 9. 16. 5.
52. Plato de Leg. lib. 9.
53. 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 playfellow; “nhpioV, ouc eJelwn“.
54. Stiernh. de jure Goth. l. 3. c. 4.
55. De Mornay on the digest.
56. 2 Inst. 148. 315.
57. 1 Hal. P. C. 425. 1. Hawk. P. C. 75. Fost. 282, etc.
58. Fost. 287.
59. Fost. 283.
60. 2 Hawk. P. C. 381.
61. Fost. 288.
62. “Si quis impatientia doloris, aut taedio vitae, aut morbo, aut furore, aut pudore, mori maluit, non animadvertatur in eum.” Ff. 49. 16. 6.
63. Pott. Antiqu. b. 1. c. 26.
64. 1 Hawk. P. c. 68. 1 Hal. P. C. 413.
65. See pag. 24.
66. Hal. P. C. 412.
67. Finch. L. 216.
68. 1 Hal. P. C. 466.
69. Stiernh. de jure Goth. l. 3. c. 4.
70. 1 Hawk. P. C. 82.
71. Kelyng. 135.
72. Fost. 296.
73. Plutarch. in vit. Solon.
74. Ff. 48. 5. 24.
75. Stiernh. de jure Goth. l. 3. c. 2.
76. 1 Hal. P. C. 486.
77. Sir. T. Raym. 212.
78. 3 Inst. 56.
79. Kel. 40.
80. 3 Inst. 57.
81. Foster. 258.
82. 1 Lord Raym. 140.
83. Fost. 299, 300.
84. Fost. 301. 1 Hawk. P. C. 77.
85. 1 Hal. P. C. 470.
86. 1 Hawk. P. C. 77.
87. Gen. 9:6.
88. Numb. 35:31.
89. L. of N. b. 8. c. 3.
90. Dialog. de Scacch. l. 1. c. 10.
91. Stiernh. de jure Sueon. l. 3. c. 3.
92. Glanv. l. 14. c. 3.
93. Bract. l. 3. tr. 2. c. 15. § 7. Stat. Marlbr. c. 26 Fost. 281.
94. Stiernh. l. 3. c. 4.
95. l. 3. tr. 2. c. 15.
96. 1 Hal. P. C. 447.
97. Bract. ubi supr.
98. P. C. l. 1. c. 10.
99. 3 Inst. 47.
100. 1 Hal. P. C. 425.
101. 3 Inst. 48.
102. Fost. 132. In the case of Macdaniel and Berry, reported by Sir Michael Foster, though the attorney general declined to argue this point of law, I have grounds to believe it was not from any apprehension that the point was not maintainable, but from other prudential reasons. Nothing therefore should be concluded from the waiving of that prosecution.
103. Mirror. c. 1. § 9. Britt. c. 5. Bracton. l. 3. c. 4.
104. Stiernh. de jure Goth. l. 3. c. 3.
105. Ff. 48. 8. 1.
106. 1 Hawk. P. C. 78.
107. 1 Hal. P. C. 432.
108. Ibid., 431.
109. Mirr. c. 4. § 16. See Vol. III. pag. 122.
110. Britt. c. 5. 4. Inst. 251.
111. 1 Hal. P. C. 430.
112. 1 Hawk. P. C. 79.
113. 3 Inst. 50. 1 Hal. P. C. 433.
114. 3 Inst. 50. 1 Hawk. P. C. 80.
115. See Barrington on the statutes. 425.
116. Foster. 256.
117. 2 Roll. Rep. 461.
118. 1 Hal. P. C. 451.
119. 1 Hawk. P. C. 82.
120. 1 Hal. P. C. 454. 47. 4.
121. 1 Hawk. P. C. 74.
122. Ibid. 84.
123. Hal. P. C. 455.
124. 1 Hawk. P. C. 82. 1 Hal. P. C. 455, 456.
125. Fost. 291.
126. 1 Hal. P. C. 457. Foster. 308, etc.
127. 1 Hal. P. C. 465.
128. 1 Hal. P. C. 466.
129. Fost. 255.
130. 1 Hal. P. C. 450.
131. “The body of a malefactor shall not remain all night upon the tree; but thou shalt in any wise bury him in that day, that the land be not defiled.” Deut. 21:23.
132. “Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit; ut, et conspectu deterreantur alii, et solatio sit cognatis interemptorum, eodem loco poena reddita, in quo latrones homicidia fecissent.” Ff. 48. 19 28. § 15.
133. Fost. 107.
134. Ff. 48. 9. 9.
135. Cic. Pro. S. Roscio. § 25.
136. 1 Hal. P. C. 380.
137. Foster. 107. 324. 336.
138. See pag. 75.
139. “Omnium gravissima censetur vis facta ab incolis in patriam, subditis in regem, liberis in parentes, maritis in uxores, (et vice versa) servis in dominos, aut etiam ab homine in semetipsum.” Stierhn. de jure Goth. l. 3. c. 3.
140. 1 Hawk. P. C. 89. 1 Hal. P. C. 380.
141. 1 Hal. P. C. 381.
143. Fost. 337.
144. 1 Hal. P. C. 382. 3. Inst. 311.
145. Caesar de bell. Gall. l. 6. c. 18.
146. See pag. 93.