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[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 assistance of the law. Wherefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible, or at least probable, means of escaping from his assailant.

It is frequently difficult to distinguish this species of homicide in self-defence, upon sudden affray, from that of manslaughter in the proper legal sense of the word (†). But the true criterion between them seems to be this: when both parties were actually combating, at the time when the mortal stroke was given, or if the slayer was not at that time in immediate danger of death, the slayer is guilty of manslaughter (u); but if the slayer had not begun to fight, or having begun, declined, or endeavoured to decline, any further struggle, and afterwards, being closely pressed by his antagonist, killed him to avoid his own destruction, this is homicide excusable by selfdefence (x). 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 gives the mortal stroke (y); and that, not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding

the course of a sudden brawl. But
it is clear that the term equally
applies, though the killing in the
course of a brawl shall be such as
to amount to manslaughter.
stat. 24 Hen. 8, c. 5; Keyl. 67; 3
Inst. 55, 59; Hawk. P. C. b. 1, c. 30,
s. 1; Fost. 275.

(t) 3 Inst. 55. (u) Fost. 277.

(x) Ibid.

See

(y) Blackstone says (vol. iv. p. 185), "before he turns upon his "assailant." But though a person retreating to the wall should give several wounds in the course of his retreat, yet if he gives no mortal one till he gets thither, it has been laid down to be homicide se defendendo only. (See 1 Hale, P. C. 479; Hawk. P. C. b. 1, c. 29, s. 15.)

[his brother's blood (). And though it may be 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 honour: because the sovereign and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves (a). 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" (b). 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 (c); 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 (d).

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 fray 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 (e). And if A., upon a sudden quarrel, assaults B. first, and upon B.'s returning the assault, A. really and bonâ 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 (f), though others (g) have thought this opinion

(2) If a man strike another upon malice prepense, and then fly to the wall, and there kill him in his own defence, he is guilty of murder. (Hawk. P. C. b. 1, c. 29, s. 17.) (a) 1 Hale, P. C. 481.

(b) Ff. 9, 2, 45.

(c) 1 Hale, P. C. 483.

(d) Puff. L. of N. b. 2, c. 5, s. 13.
(e) 1 Hale, P. C. 479.
(f) Ib. 482.

(9) Hawk. ubi sup.

[too favourable, inasmuch as the necessity, to which he is at last reduced, originally arose from his own fault. Under this excuse of self-defence, 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 relation assisting, being construed the same as the act of the party himself (h).]

Excusable homicide, in both the species here described, was formerly considered as involving in it some degree of legal blame or punishment; and as distinguishable, in this respect, from that which was justifiable. In the case of misadventure the law presumed negligence, or at least a want of sufficient caution in him who was so unfortunate as to commit it: who therefore was not altogether faultless (i). [And as to the necessity which excuses a man who kills another in a sudden fray se defendendo, Lord Bacon entitles it necessitas culpabilis (k). For it was always understood, (as before remarked,) that the quarrel or assault arose from some unknown wrong, or some provocation in word or deed; and since in quarrels both parties may be, and usually are, in some fault-and as it scarce can be tried who was originally in the wrong—the law would not hold the survivor entirely guiltless. The law besides might have a further 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 neighbour, without an express warrant from the law so to do, shall in no case be absolutely free from guilt.

Nor was 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

(h) 1 Hale, P. C. 484.

(i) Hawk. P. C. b. 1, c. 28, s. 24.

(k) Elem. c. 5.

[man, however it happens, will leave some stain behind it. And the Mosaical law appointed certain cities of refuge for him who killed his neighbour unawares: "as if a man 66 goeth into the wood with his neighbour to hew wood, "and his hand fetches a stroke with his axe to cut down

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a tree, and the head slippeth from the helve, and lighteth upon his neighbour that he die, he shall flee unto one of "these cities and live" (m). 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, likewise, 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 (n). Among the Greeks, homicide by misfortune was expiated by voluntary banishment for a year (o). In Saxony, a fine was paid to the kindred of the slain which also, among the Western Goths, was little inferior to that of voluntary homicide (p); and formerly in France, no person was 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 (9).

The penalty for an excusable homicide inflicted by our laws is said by Sir Edward Coke to have been antiently no less than death ("); which, however, is with reason denied by later and more accurate writers (s). It seems rather to have consisted in a forfeiture; some say of all the goods and chattels, others only of part of them; by

(m) Numb. xxxv. and Deut. xix. (n) Cod. 9. 16, 5.

(0) Plato de Leg. 1. 9. 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 kill

ing his playfellow,-“ νηπιος οὐκ ἐθέλων.”

(p) Stiern. de Jure Goth. 1. 3,

c. 4.

(2) 4 Bl. Com. 188, cites De Morney on the Digest.

() 2 Inst. 148, 315.

(s) 1 Hale, P. C. 425; Hawk. P. C. b. 1, c. 29, s. 21; Fost. 282.

[way of fine or weregild (t). 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 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 became more considerable, the delinquent had, as early as our records will reach, a pardon and writ of restitution of his goods as a matter of course and right, only paying for suing out the same (u).] And in later times, to prevent this expense in cases where the death notoriously happened by misadventure or in self-defence, the judges usually directed a general verdict of acquittal (x). Afterwards, by statute 9 Geo. IV. c. 31, s. 10, it was provided, that no punishment or forfeiture should be thenceforth incurred by any person who should kill another by misfortune or in his own defence, or in any other manner without felony; and though this provision was afterwards repealed, a clause to the same purpose was inserted in 24 & 25 Vict. c. 100, the statute by which offences against the person are at present regulated (y). So that all practical distinction between justifiable and excusable homicide is, under our existing law, wholly done away.

3. [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

(4) Fost. 287.

(u) Ibid. 283; Hawk. P. C. b. 2, c. 37, s. 2.

(x) Fost. 288; 4 Bl. Com. 188; and see Christian's note at that place.

(y) See 24 & 25 Vict. c. 100, s. 7.

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