Oates directly and distinctly caused the death of several CH. XXVI. innocent persons by perjury, but the fact that the judges and juries who tried the cases acted upon their own responsibility, and because they chose to believe Oates's testimony, so disconnected his perjury from the death which he caused that even in 1685 it was not thought possible to convict him of murder. An instance of a somewhat similar kind is this. A woman dies in her confinement. It can hardly be said that the father of her child has killed her, though the connection between his act and her death is perfectly distinct. Even if the connection which caused the birth of the child was a rape, I do not think that the death would amount te murder; nor would it be so if a husband, tired of his wife, and being warned that her death would be the probable result of childbirth, intending and hoping to cause her death, actually caused it in the manner supposed. Death by childbirth and the connection which leads to childbirth are separated from each other by so many possibilities, and the circumstances which render childbirth dangerous or otherwise have so little relation to its distant cause, that I think if the question were ever raised it would be considered that the cause of death was too remote for the act to be regarded as homicide. Somewhat similar illustrations might be supplied by the case of infection. A. hoping that B., his enemy, will catch the small-pox, induces him to walk down a street in which many persons are sick of it. B. catches the small-pox and dies. A. no doubt has caused B.'s death, but in a manner so remote and dependent on so many contingencies that it could hardly be said that he had killed him. Should such a case occur however, and should the facts be plainly proved, it is difficult to say how the court might ultimately decide.

Thus far I have illustrated the proposition that in the case of killing by an act the act must be connected with the death, directly, distinctly, and immediately. I now come to the case of killing by omissions.

The idea of killing by an omission implies, in the first place, the presence of an opportunity of doing the act the omission of which causes death. It would be extravagant to say that a man who having food in London omits to give

CH. XXVI. it to a person starving to death in China has killed the man in China by omitting to feed him; but it would be natural to say that a nurse who being supplied with food for a sick person under her care omits to give it, and thereby causes the sick person's death, has killed that person. Whether a person, who being able to save the life of another without inconvenience or risk refuses to do so, even in order that he may die, can be said to have killed him is a question of words, and also a question of degree. A man who caused another to be drowned by refusing to hold out his hand to save him probably would in common language be said to have killed him, and many similar cases might be put, but the limit of responsibility is soon reached. It would hardly be said that a rich man who allowed a poor man to die rather than give, say £5, which the rich man would not miss, in order to save his life, had killed him, and though it might be cowardly not to run some degree of risk for the purpose of saving the life of another, the omission to do it could hardly be described as homicide. A number of people who stand round a shallow pond in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child.

Whether the word "killing" is applied or not to homicides by omission is to a great extent a question of words. For legal purposes a perfectly distinct line on the subject is drawn. By the law of this country killing by omission is in no case criminal, unless the thing omitted is one which it is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary, in the first place, to ascertain the duties which tend to the preservation of life. They are as follows:-A duty in certain cases to provide the necessaries of life; a duty to do dangerous acts in a careful manner, and to employ reasonable knowledge, skill, care, and caution therein; a duty to take proper precautions in dealing with dangerous things; and a duty to do any act undertaken to be done, by contract or otherwise, the omission of which would be dangerous to life. Illustrations of these duties are the duty of parents or guardians, and in

some cases the duty of masters, to provide food, warmth, CH. XXVI clothing, &c., for children; the duty of a surgeon to employ reasonable skill and care in performing an operation; the duty of the driver of a carriage to drive carefully; the duty of a person employed in a mine to keep the doors regulating the ventilation open or shut at proper times. To cause death by the omission of any such duty is homicide, but there is a distinction of a somewhat indefinite kind as to the case in which it is and is not unlawful in the sense of being criminal. In order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence. There must be more, but no one can say how much more, carelessness than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused. No rule exists in such cases. It is a matter of degree determined by the view the jury happen to take in each particular case.

These considerations give a sufficiently distinct notion of what is meant by homicide according to English law. The next important question relating to it is as to the distinction between lawful and unlawful homicide.

As one of the great objects of all law, and particularly of criminal law, is the protection of life, it follows that homicide must, as a rule, be unlawful, so that it is necessary to consider only those cases in which it is lawful. A further division may be made between justifiable homicide and excusable homicide. This distinction has some historical interest, though at present it involves no legal consequences.

Homicide may be regarded as the highest form of bodily injury which can, in the nature of things, be inflicted. It is no doubt possible to suggest cases of mutilation and humiliation which would convert life into a lingering course of agony and shame, and would so be far more terrible than death, but such cases are rare, and need not be specifically considered. The cases, therefore, in which homicide is lawful may be considered in connection with those in which bodily injuries in

CH. XXVI. general are lawful. There are cases in which the infliction of minor injuries is lawful, though the infliction of death is unlawful, but I know of no case (except the single case of capital punishment) in which an occasion which would justify the infliction of death would not justify the infliction of minor injuries.

The following, then, are the principal cases which justify excuse the infliction of death, or minor personal injuries:

or

1. The execution of legal punishment and legal process. 2. Keeping the peace.

3. The prevention of crime.

4. Private defence.

5. Consent.

6. Accident.

To this might be added injuries inflicted during war, but these I do not propose to consider, having already to some extent referred to them.

The infliction of legal punishments, and the execution of legal process belong to the subject of criminal procedure, and have already been considered. If the subject is followed out in all its details, it is intricate, and requires elaborate treatment; but the general principle upon which it depends is simplicity itself. The execution of legal process and the infliction of legal punishments are the very reasons for which the criminal law exists, and it would involve a fundamental contradiction if they were not themselves lawful actions.

This general principle is qualified by two subordinate principles equally plain. The first is that no greater amount of force can be lawfully employed in any case than that amount which the person who employs it regards upon reasonable grounds, and in good faith, as necessary for the attainment of his object. The other is that where a man acts in the discharge of what, under a mistake of fact, he supposes, on reasonable grounds, to be a legal duty, or in what he supposes, on reasonable grounds, to be the defence of his person or his house against serious instant danger (as, for instance, if a man resisted people pretending by way of joke to rob him), his position is, generally speaking, the same as it would have been

if the facts which he supposed to exist had really existed. If, CH. XXVI. however, under a mistake of fact he uses violence, which, if the supposed facts had existed, he would have been under no legal obligation to use, and which he did not believe to be necessary for the immediate protection of his life or habitation, he acts at his peril, and if he is mistaken is not justified. For instance, a man shoots a person whom he supposes upon reasonable grounds to be a burglar breaking into his house, though in fact he is not. He is justified. Another man shoots a person whom he believes on reasonable grounds to be a felon whom he cannot otherwise arrest. He is not Justified if he is mistaken. If he was a police officer, whose duty it is to arrest felons, he would be justified.

Simple and obvious as these principles are, a full statement of the law upon the subject would be tedious and intricate, because when the principles stated have to be applied to facts, a number of subordinate distinctions arise which it is necessary to consider.

Without going into details I will indicate the nature of these questions. The execution of a lawful sentence, process, or warrant, is of course justifiable, but difficulties arise if the sentence, warrant, or process is illegal, or if a mistake is made as to the person affected. So in regard to arrests without warrant, there are differences between the position of peace officers, persons charged by peace officers to assist, and private persons. There are also differences between the arrest of persons found committing crimes, the arrest of persons suspected of having committed felonies, and the prevention of the escape of persons arrested, whether by peace officers or private persons. These distinctions, however, have little general interest, and I need not dwell upon them.

I now come to acts of violence necessary for the preservation of peace and the prevention of crime. The distinction between these two objects is matter rather of language than of substance, for on the one hand every breach of the peace is a crime; and on the other, no force can prevent crimes except crimes of violence. No one uses force or would be in any way justified or excused in using force to prevent a man from committing forgery or perjury. It is, however,