14 PRESERVATION OF PEACE AND PREVENTION OF CRIME. CH. XXVI. convenient to distinguish the two cases, because the questions arising on them differ. The force employed for the suppression of a riot or of treason by levying of war is of a different kind, and usually gives rise to questions of a wholly different nature from the employment of force against a burglar or highway robber. As the cases of preservation of the peace and the prevention of crime are closely connected, so the prevention of crime and self-defence are also closely connected. If a highway robber attacks a peaceable person with murderous violence, the person attacked has two or even three grounds on which his conduct in resisting, even with deadly weapons, may be justified. They are, first that of self-defence; secondly, the prevention of a crime; and thirdly, the arrest of a felon. His rights in these three capacities do not in this particular case materially differ. If, instead of being attacked by a robber, he was attacked by a furious madman, the case would be one of self-defence only, but his rights would be precisely the same, except that he would not be justified in killing the madman if he tried to escape upon resistance, and could not otherwise be taken. Where the violence to be resisted does not amount to a felony, but is an assault more or less aggravated, the person assaulted has a right to resist, the degree of the resistance being regulated by the nature of the assault. Even if the assault has been provoked by the person assaulted he may nevertheless defend himself, unless the provocation given by him was in itself an assault, and the violence provoked by that assault was no more than was necessary for the immediate self-defence of the party who employs it. But in all cases the duty of the person who begins an affray is when resisted to run away as soon and as far as he can, nor is he regarded as detending himself, in any violence which he may use, unless he is pursued, overtaken, and subjected to unnecessary violence. The older authorities, indeed, go so far as to say that it is in all cases the duty of the party assaulted to run away; but this I think ought to be restricted to cases of what amounts to a challenge to fight with deadly weapons. The right of defending proprietary rights by force varies to some extent according to the nature of the property CH. XXVI. defended. Generally speaking, the principle is this:-The person injured may prevent the wrongdoer by force not extending to blows or wounding, from pursuing or effecting his unlawful purpose, but may not strike or wound him, either in order to prevent his unlawful act or in order to punish him for having acted unlawfully. For instance, he may put a trespasser out of his house, or out of his field by force, but he may not strike him, still less may he shoot or stab him. If the wrongdoer resists, the person who is on the defensive may overcome his resistance, and may proportion his efforts to the violence which the wrongdoer uses. If the wrongdoer assaults the person who is defending his property, that person is in the position of a man wrongfully assaulted, and may use whatever violence may become necessary for the protection of his person. There are some cases, as e.g., the right to correct a scholar, and the right to preserve discipline in a ship of which I need say nothing here. The principle already stated will serve in most cases to determine the cases in which homicide is justifiable. The typical instances are the execution of a criminal duly condemned to death; the killing a man who cannot otherwise be prevented from, or be arrested for, committing a felony, or who would otherwise inflict on the person who kills him death or grevious bodily harm; the killing of rioters who cannot otherwise be dispersed, and who are likely, if not dispersed, to destroy life or property, or to prevent the due course of the administration of the law. In each of these cases killing by the use of deadly weapons may be justified. Killing a man by force lawful under the circumstances, and neither likely nor intended to kill (as where a man who strikes another with his fist, and is himself killed by a blow with the fist, given in reasonable self-defence), is also justifiable. The cases in which homicide is excusable may all be reduced under the head of accident, that is to say, killing without any intention to kill or hurt; and upon this the law of England recognises two distinctions. Death may occur CH. XXVI. accidentally, or, which is the same thing, unintentionally, in the doing of an act in itself lawful, or in itself unlawful. It may also occur by reason of the omission to perform a legal duty tending to the preservation of life. The following are typical instances of these four classes of accidental death. 1. A. fires a gun at a mark. The gun bursts and kills B. 2. A. fires a gun at a mark without giving proper warning or taking proper care in placing the mark and kills B. 3. A. fires a gun at C. with intent to murder him, the gun. bursts and kills B., A.'s accomplice. 4. A. fires a gun at C. with intent to murder him and kills B. whom A. had not warned to stand out of the way. In In each of these cases the death of B. is unintended. the first and third cases the death of B. is what may be called a pure accident; it is not only unintended, but it arises from circumstances which a prudent man would not naturally foresee or take precautions against, and which A. cannot have thought of, for if he had, he would certainly not have fired the gun. But in the first case A. is doing an innocent, and in the third a most wicked action. In the second and fourth cases A. omits a precaution proper under the circumstances, but in the second case the act itself is innocent; in the fourth it is so wicked that the omission to give warning to B. would hardly be regarded as an aggravation of the moral guilt of firing at C. These differences exist in the nature of things, and I merely note them for the present without discussing the way in which they are treated by English law, further, than by saying that homicide caused accidentally by any unlawful act is unlawful. The expression, "unlawful act," includes, I believe, all crimes, all torts, and all acts contrary to public policy or morality, or injurious to the public; and particularly all acts commonly known to be dangerous to life. The only additional remark I have to make upon the law relating to justification and excuse for the infliction of bodily injury has reference to the subject of consent. Where death is caused the consent of the party killed to his own death is regarded as wholly immaterial to the guilt of the person who causes it. If an injury less than death is caused the consent of the party injured seems to supply a defence, CH. XXVI. unless the injury itself is illegal, or unless the circumstances under which it is inflicted make it illegal. A consent to be maimed, or a consent to be beaten in a prize fight does not prevent the offender from being guilty of an offence. The next question is as to the distinction between the two forms of unlawful homicide, namely, murder and manslaughter. The distinction has been elaborated by an immense number of decisions extending over several centuries, of part of which I shall give the history. At present, however, I am occupied only with the analysis of the result. It is intricate, though I think it is capable of being reduced to greater precision than might at first sight be expected. This is the fault, not of the judges nor of the legislature, but of the nature of things. In homicide, as in all other crimes, the definition consists of two parts, the outward act and the state of mind which accompanies it; and there is no crime (unless it be treason or libel) in which so many different possible states of mind have to be considered. The case, moreover, is liable to one special qualification which is peculiar to this particular offence. Whatever else the definition includes it must include the fact of death; but there is no definite connection at all between the fact of death and the moral guilt or public danger of the act by which death is caused. The most deliberate, desperate and cruel attempt on life may not cause death, the most trifling assault may cause it. Death may be intentionally caused under circumstances of the greatest possible atrocity, or under circumstances which produce rather pity for the offender than horror at the offence; or, again under circumstances which indicate determined defiance of the law, but do not involve any special ill will to any particular person. This extreme variety in the circumstances under which, and the intentions with which death may be occasioned is the true cause of the great difficulty which has been found in giving satisfactorydefinitions of the different forms of homicide.1 1 I hope I may not be regarded as egotistical in saying that I have been led by circumstances to consider this matter more frequently and in greater VOL. III. C CH. XXVI. The following account, I think, shows that the matter is capable of being reduced to a form which can be shown to comprehend every possible mode of taking life, and to provide, for such of them as are treated as criminal, punishments bearing a proportion both to their moral guilt and to the public danger which they involve. The first step is to classify homicide as lawful and unlawful; the next to divide unlawful homicide into the two offences of murder and manslaughter. All homicide is unlawful which is neither justifiable nor excusable according to the principles already stated; but in order to classify unlawful homicide so as to enable us to proceed to divide it into degrees we must have regard to two things, namely, the nature of the act or omission by which death is caused as being in itself lawful or unlawful, and the intention by which that act or omission is accompanied. It may not unnaturally be asked whether the motive ought not to be considered as well as the intention. I think that it ought not. As matter of evidence the existence of a motive for an offence is always important. In reference to punishment the nature of the motive may in particular cases be of importance; but the motives of the offender ought never in my opinion to enter into the definition of an offence. The reason is that it is always extremely difficult to ascertain or prove them; because they are generally mixed, and nearly always fluctuating; and because they do not affect the public danger or actual mischief of the crimes which they cause. The following table will, I think, be found to be exhaustive in this view, and to exhibit every imaginable case of detail than any previous writer upon it. I had to consider it repeatedly |