there being no logical connection between the two events in the eye of the law, the whole circumstances must be viewed in the same light as if the dispensations of Providence had proceeded in their own order, irrespective of the volition of man, and as if the death of the one person happened naturally and in no other sense to follow the act of the other. There was a sequence of events, but no cause and effect. Why this sequence should have occurred it is vain to inquire further, since the decrees of Providence are at once beyond all scrutiny.

It is to be borne in mind however, as formerly mentioned, that though there is no alternative between murder and manslaughter on the one hand and mere fortuitous accident on the other, this does not imply, that there may not be such negligence as will support a civil action. The negligence that may be blameless in one view may be blamable in another and indeed it is difficult to draw the line of demarcation clearly between actionable negligence and negligence not criminal. It seems only one of degree, and yet that degree is scarcely capable of clear expression. The negligence, the recklessness, the utter want of judgment and circumspection, are only a little less in the one case than the other, yet this makes all the difference between the two remedies. The actions for negligence may thus be said to fill up a large space lying between manslaughter on the one hand and misadventure or pure accident on the other hand.

Ancient laws confounded accidental death with murder.Though it may seem a truism to modern civilisation, that death to one man may be caused by the act of another man, and yet no blame whatever may arise, being what is deemed the merest accident, which no wisdom and care can wholly avoid, yet most ancient nations, including our own, could not draw this nice distinction. Barbarism cannot afford the necessary thought to go into niceties of degrees of culpability; and hence whenever one man was in any sense mixed up in the death of another, one indiscriminate conclusion was drawn, that he was guilty-his punishment could not be passed over-and some kind of expiation must be demanded. And somewhat singular, if not childish, were the practices and expedients by which they gave effect to this conscious and inarticulate

ban, under which all kinds of manslayers were singled out and punished.1

The same want of discrimination in early English law.In our own early law we find the traces of the same modes of thinking. Misfortune was recognised in the time of Henry III. as a ground of exemption from the murder fine.2 And a king's pardon was required to exempt the unfortunate author of an accidental death from the guilt of murder. The slayer of a thief or burglar, or of a person in chance-medley, was expressly declared by a statute of Henry VIII. not to forfeit his lands or goods, but was to be acquitted. And a bill was introduced in Queen Elizabeth's time, to exempt one, who killed another at a certain sport, from forfeiture of goods or chattels. In short, homicide by accident or misadventure used in our early law to be punishable by forfeiture of goods and chattels. Coke, Hale, and Blackstone try to explain away this by saying, that though it is but a man's misfortune, yet the king has lost a subject by the accident, and the man who caused the accident ought to have been

1 In the law of Moses homicide was distinguished as deliberate or deceitful, as culpable, and as fortuitous. The first was punished with death, the second only with exile or confinement in a city of refuge until the death of the high priest.—-Numb. xxxv. 23, Deut. xix. 4, 6, 11, Exod. xxi. 14. Herodotus said that Adrastus, owing to his killing his brother by accident, was banished and dispossessed, and fled to the court of Croesus, desiring to be purified of blood.-Herod. b. i. And the banishment lasted for a year. And Homer mentions the horror of spectators as a manslayer fled to a foreign country.-Iliad, b. xiii. 24. And though the Roman law took little notice of involuntary or accidental homicide, the Church soon introduced a deeper sense of the sacredness of life, and treated jealously what might otherwise pass without censure. Thus though a master was admitted to have the power of beating a slave, yet even though there was no malice aforethought, or unfairness in the means of punishment, the ecclesiastical law treated such killing as a ground of penance.-Bing. Chr. Antiq. b. c. xix. 10. In Japan also accidental homicide subjected the unfortunate author to death equally with the deliberate murderer, the only difference being, that he was in the former case allowed to be his own executioner.—Barringt. Stat. 71. And latterly he was subject to banishment.-Dickson's Japan, 341. And among the Kaffirs no distinction was made between wilful murder and any other homicide.-Maclean's Kaffers, 60. In Benin, Africa, where a man was killed, a slave was killed to appease the dead man's ghost.—6 Univ. Mod. Hist. 583. 2 Stat. Prov. 43 Hen. III. § 25. 4 8 Eliz.; 1 Parl. Hist. 717.

3 24 Hen. VIII. c. 5.

more careful. Hence he forfeited his goods to the king by way of learning the lesson of taking greater care.1 But a statute of George IV. treated these attempts to put the best face on a bad law as valueless and repealed the law altogether, setting the case on its right footing as one of mere accident and carrying blame to none.

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These cases of death by misadventure thus come into view, wherever the facts have failed to involve such fault or negligence as forms the ingredient of manslaughter; as, for example, where workmen without blame killed a person passing in an unfrequented place: 2 where the bead of a hatchet flies off and kills a bystander: where a driver in the dark drives over a person: where a sportsman shoots at something moving, and not suspected to be a human creature where a gun goes off when examining it, or turns out to be loaded, without the knowledge of the user: where a child is being reasonably corrected, but by some unforeseen calculation the stroke proves fatal: where in shooting at a butt, some person comes unawares within range, and is killed. In these and numerous cases, embracing the diversified situations in life, the law first jealously looks at the whole circumstances, and if satisfied that the person, whose act causes the death, was not deficient in reasonable care and forethought—that he did not omit anything which he ought to do, and did not do anything which he ought to have omitted-treats the calamity as entirely unforeseen and fortuitous. Human foresight is only conditionally wise, and the law does not exact impossibilities, and accepts and makes the best of the frailties of human nature. No one is held to warrant, at the risk of his own life, that he will always act in every conceivable situation of life so as not to cause the death of any other human creature, for in order to do this omniscience and omnipotence must be required.

Difficulties of the ancients in punishing homicide.-Nothing seems to have perplexed ancient nations so much as the mode of dealing with murderers, and with the death of one human being when caused by another's act; and three remarkable features of their law deserve some notice, though the ideas they represented have been long unknown

1 2 Inst. 148. 2 1 Hale, P. C. 472; 1 Hawk. P. C. c. 29, § 4 ; Fost. 262; 1 East, P. C. c. 5, § 38.

to modern civilisation. It appears that all modern nations passed through the same stages of thought on this subject in their earlier history. These three stages related to the practice of the blood avenger, and cities of refuge or sanctuaries-the practice of paying a murder-fine, which was partly substituted for the former-and the practice of deodands, or confiscation of the thing which was instrumental in causing the death.

The notion of a blood avenger.—Among the ancient and barbarous nations, whether a man was slain by accident or not, the wisest course that occurred to them was to let the nearest relative of the dead man have his will, and kill or assassinate the slayer, and often the slayer's relatives also, without mercy or compunction, or the formality of trial, or even an hour's breathing time. It was at a later period generally deemed but fair, that the doomed man should have one chance for his life; and hence, if by superior speed or skill he could outrun the avenger for a certain distance and reach a city of refuge or sanctuary, then he was not to be murdered, but to be let alone, at least for a time, till he banished himself in due course from the country. The practice of a blood avenger seems traditionary in every ancient society. The punishment of murder was left by the law of Moses to the blood avenger, who felt bound in honour to slay the murderer whenever and wherever he could find him.2 Where no blood avenger appeared, or he was dilatory, the magistrate was bound himself to punish the murderer.3 The mode

of slaying the murderer was not subject to restriction, being left to the avenger. But though other nations afterwards allowed the murderer to offer a sum of money as expiation, this was expressly forbidden by Moses.4

1 Du Boys, Dr. Cr. 696. Com. 233.

4 Numb. xxxv. 31; Deut. xix. 6; Josh. xx. 5. The Arabs were said to have a belief, which seemed also recognised by David, that no dew falls on a place where a murder has been committed until the blood has been avenged.-2 Sam. i. 21. The office of the blood avenger was also seen among the ancient Greeks.Plato, De Leg. 9. The relatives incurred a fine, if they did not prosecute the criminal, unless the deceased had forgiven the act as unintentional. Among the ancient Scandinavians a man and his relatives would lose their reputation, if they did not avenge the

The murderer's relatives also punished. The practice of punishing parents for the crimes of children, and children for the crimes of parents, and other relatives besides, was also a common notion of justice among ancient nations; the reason being supposed to be that the spirit of revenge is so insatiable, that nothing less than the blood also of those who were supposed dear to the criminal could satisfy the blood avenger. But Moses prohibited this barbarous custom; at the same time, whenever a person was found murdered in the fields, the magistrates of the nearest city were bound to make a solemn avowal of their utter ignorance of the murderer, as well as to perform certain ceremonies amounting to expiation.2 To this day the natives of Central Africa and of America put to death the relatives of a man found dead.3 The ancient Macedonians also punished the relatives and children. It ought not,

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kinsman's death. But gradually magistrates were appointed, who obliged the offended person to accept a present as a composition from the aggressor, which composition varied according to the rank of the slain.-1 Mallet's North. Antiq. 184. And among the savages of Australia it was deemed the holiest duty to avenge the death of a relative, and it was a disgrace not to do so.-2 Grey's Austr. 240. In ancient Abyssinia, when a criminal was pierced to death by lances, the relatives of the murdered had the first thrust. But the prosecutor often held a feast, and in the presence of the doomed man discussed the details of the intended cruelties to be shortly inflicted on him.-6 Univ. Mod. Hist. 215.

Besides the composition to relatives for murder and personal injuries, the codes of barbarians required a certain duty, called fredum to be paid by way of acknowledgment of protection against the right of prosecution, and fred in Swedish signifies peace.-Montesq. b. xxx. c. 20. Clotharius, about 595, made a wise decree, forbidding a person robbed to receive a clandestine composition without an order of a judge. These fines became according to the laws of the Franks, a source of revenue to the lord.-Ibid. c. 19, 20. St. Louis of France, about 1248, in the custom of Beauvoisin, with a view to prevent the avenging of crime, ordered a truce of forty days to intervene before any step could be taken.-3 Guizot Civ. Fr. lect. 14.

i Deut. xxiv. 16; 2 Kings, ix. 26; xiv. 5, 6; Josh. vii. 24, 25. 2 Deut. xxi. 1-9. 3 1 Schwenf. 307; 1 Bancr. Nat. Rac. 702.

4 Q. Curt. b. vi. In Cochin China and Japan, for some of the higher crimes, the relatives of the criminal were also executed.— 8 Pink. Voy. 481; Dickson's Japan, 256. And in China, in cases of treason, all the near male relatives above sixteen, and other relatives if living under the same roof, were indiscriminately beheaded also, and the children sold as slaves.---Staunton's Code, 269. And the