homicide "as hominis occisio ab homine facta," and he then proceeds to divide it in a way which may be exhibited in a tabular form as follows:

CH. XXVI.

These divisions

dans operam rei illicitæ.

says 1 Sir Horace Twiss, are taken from the Breviarium Extravagantium collected by Bernhard, of Pavia, from Decretals not collected by Gratian.

I do not see the use of the division into homicide lingua and homicide facto. Homicide by command or counsel seems to belong to the general subject of accessories to which Bracton refers on several occasions, and what is meant by "homicide by the tongue by defence" I do not know. The division of homicide facto into cases of justice, necessity accident, and intention, recognises some of the distinctions I have pointed out as the result of much subsequent experience, but it does so very imperfectly. The divisions are not mutually exclusive. All homicide by way of either justice or necessity is intentional. Moreover, the idea of necessity seems to exclude the adjective evitabilis." The words were no doubt ill-chosen, and their adaptation to facts gave a great deal of trouble, and led to, or were used to excuse, many mistakes afterwards.

The distinction between voluntary homicide in the presence ' Preface, lviii.

* Bracton's own explanation hardly comes up to his statement: "Lingua "ut si quis dissuadet et sic dissuadendo retinebit aliquem a bono proposito "volentem alium liberare a morte et sic quodam modo indirecte facit quis "homicidium."-P. 278. Protecting a person in the commission of homicide by ordering others not to interfere, would be a similar case, and would correspond better with " defensione," but this is conjectural.

CH. XXVI. of witnesses and in the absence of witnesses is not only a distinction without a difference, or with only an accidental difference, but it is also open to the remark that if there are no witnesses it is impossible to say whether the homicide was necessitate, casu, or voluntate, (in Bracton's sense of the word).

1With regard to the punishment of homicide Bracton says, "Pœna vero homicidii commissi facto variatur pro homicidio vero justitiæ justa et recta intentione facto non est aliqua pœna injungenda."

In speaking of appeals he says 2 "si felo convictus fuerit pro "morte hominis vel pro alia felonia, ultimo puniatur supplicio "sicut morte vel membrorum truncatione." In another passage it is implied that the punishment was usually death, 3 for he says that in certain cases persons suspected of murder "pœnam capitalem non condent."

3

Murder is considered by Bracton apart from homicide in general. The definitions of murder and of homicide voluntate are as follows:-"5 Voluntate ut siquis ex certâ scientiâ, et in "assultu præmeditato, irâ vel odio, vel causâ lucri, nequiter et in feloniâ et contra pacem domini regis aliquem interfecerit." "6 Murdrum vero est occulta extraneorum et notorum "hominum occisio, a manu hominis nequiter perpetrata, et quæ nullo sciente vel vidente facta est, præter solum "interfectorem et suos coadjutores et fautores, et ita quod "non statim assequatur clamor popularis." Bracton explains at length the different members of this proposition in a very minute way, of which the following is a specimen :"Occulta dicitur, quia occisor ignoratur, nec scitur quis ille "fuit qui occidit. Item extraneorum et notorum hominum, "ut comprehendatis tam masculum quam fæminam et sic "excludatis animalia bruta quæ ratione carent. Extraneorum "dico, quia sive interfectus cognitus fuerit sive ignotus "dicitur Francigena, nisi Englescheria et quod Anglicus sit probetur perparentes et coram justitiariis præsentatur." He also gives a singular account of the manner of presenting

Englishry, which was differently understood in different parts CH. XXVI. of the country. He says, "In quibusdam vero comitatibus "præsentatur Englescheria sive mortuus fuerit masculus sive

fæmina, per duos masculos ex parte patris et per duas "fæminas ex parte matris, de propinquioribus parentibus in"terfecti, qui olim dicebantur to lange and to bred." (I suppose two long and two broad, i.e., two ancestors and two collaterals.) "In quibusdam comitatibus præsentatur per unum "masculum ex parte patris et per unam fœminam ex parte "matris."

1

The effect of a presentment of Englishry was to free the hundred from the fine which was to be paid if the presumption that the person slain was a Frenchman was not removed. The fine as well as the offence was called "murdrum," and many rules as to the cases in which it was or was not payable are laid down by Bracton. I have found no definition in Bracton as to what constituted Englishry. In his time about 200 years after the Conquest, the great mass of the population must have been both English born and the children and grandchildren of English born ancestors, and the presentment of Englishry must have begun at least to assume the character of a mere legal form, necessary in order to save the hundred from a fine, but otherwise almost unmeaning.

Various doctrines relating to homicide, which afterwards became and still are recognised as parts of the law of England, are to be found in Bracton. For instance, he lays down the rule that the blow of one is in certain cases the blow of all. 2" Possunt autem esse plures culpabiles de "homicidio sicut unus, ut si plures rixati fuerint inter se, “in aliquo conflictu, et aliquis sit interfectus inter tales, nec appareat ex quo nec ex cujus vulnere, omnes dici possunt. homicidæ, et illi qui percusserunt, et qui tenuerunt malo "animo dum percussus fuerit. Item et illi qui voluntate " occidendi venerunt licet non percusserunt. Item et illi qui nec occiderunt, nec voluntatem occidendi habuerunt, sed " venerunt ut præstarent consilium et auxilium occisoribus." Elsewhere in defining "injuria" he has some remarks upon homicide which show the antiquity of certain parts of

Bracton, 388-390.

2 lb. 278.

3 Ib. 544-545.

CH. XXVI.

our law. "Si quis unum percusserit et occiderit cum alium 'percutere vellet in feloniâ tenetur. Item si cum levius "credidit percussisse, gravius percusserit et occiderit tenetur. Debet enim quilibet modum et mensuram adhibere in suo "facto. Et est injuria talis quæ inducit ultimum suppli"cium cum criminaliter agatur. Est et alia quæ non nisi pœnam pecuniariam tantum et quandoque eandem pœnam cum carceris inclusione secundum facti qualitatem." I do not feel sure whether this last clause means that assaults are sometimes punished with fine and imprisonment, or that assaults which cause death are so punished in some cases. If the latter is his meaning the law in his day was more rational than it afterwards became.

There are, however, some cases in which Bracton carries the law as to homicide to a length which was not adopted in later times. Thus, he says, 1" Si sit aliquis qui mulierem

prægnantem percusserit vel ei venenum dederit per quod "fecerit abortionem, si puerperium jam formatum vel anima"tum fuerit, et maxime si animatum, facit homicidium." In another passage he seems to imply that he regarded causing death by a voluntary omission to perform what was not a legal duty, as homicide. After 2 saying that those who command persons to strike or kill " "immunes esse non "debeant a pœnâ," he adds, "nec etiam ille qui cum posset hominem a morte liberare non liberavit." He took indeed to a great extent the ecclesiastical view of homicide, for he says that if a war is unjust "tenebitur occisor si autem "justum sicut pro defensione patriæ, non tenebitur nisi hoc "fecerit corruptâ voluntate et intentione." He points out indeed that if a judge who justly condemns a criminal to death does so 3" ex livore vel delectatione effundendi hu'manum sanguinem, licet juste occidatur iste, tamen peccat "mortaliter" (Judex) " propter intentionem corruptam."

As to casual homicide, he distinguishes between casual homicide in a lawful act without negligence, casual homicide in a lawful act with negligence, and casual homicide in an unlawful act. In the two cases last mentioned the homicide is unlawful. This, again, is in accordance with 3 lb. 275-276.

1 Bracton, 278.

2 Ib. 280.

more modern decisions, and represents the existing law. CH. XXVI. In cases of casual homicide by a lawful act done without negligence Bracton thought that the person who caused the death committed no offence at all. He gives a curious illustration which must, I suppose, have occurred in actual practice. 1"Si cum pilâ luderet quis manum tensoris [tonsoris] quem non vidit pilâ percussit, ita quod gulam alicujus preciderit et sic hominem interfecerit, non tamen cum occi"dendi animo, absolvi debet." This is the modern opinion, but it did not always prevail, as I shall show immediately. On the other hand he seems to lay down the rule to which I have already referred as having for a short time prevailed in this country that the will is to be taken for the deed, but the passage in which he does so presents some difficulties. He says "In maleficiis autem spectatur voluntas et non exitus.” 2

This is the substance of Bracton's account of the crime of homicide. It lays down, though not very correctly or systematically, some of the leading distinctions connected with the subject, but it is singular that, turning as it does so very largely upon moral considerations, its principal distinctionthat between voluntary homicide and murder-should have no relation to morality; that it should take no notice of the different grades of evil intention which may accompany voluntary homicide; and that it should omit altogether the question of provocation. It classifies under the same head homicide by a sword and homicide by a blow with the fist, homicide by a person provoked in the highest degree, and homicide by a robber.

* Fleta copies and somewhat abridges Bracton. 4 Britton treats the subject very concisely. He omits many of the 1 Bracton, ii. 398.

66

2 Bracton, ii. 400. The rest of the passage is as follows: "Et nihil interest "occidat quis an causam mortis præbeat, sed ibi distinguitur inter veram causam et infortunium de animalibus quæ ratione carent vel aliis rebus "inanimatis quæ dant occasionem, sicut navis, arbor quæ oppressit vel hujus"modi. Recte autem loquendo, res firma sicut domus vel arbor radicata “quandoque non dant causam nec occasionem, sed facit ille qui se stulte gerit, nec equus multotiens. Item nec navis, nec batellus in salsâ, licet in aquâ "dulci et hoc per abusionem sicut in multis aliis casibus." This is a singular and indeed obscure passage. The meaning of the words is plain enough, but

it is difficult to follow the order of the ideas.

3 Fleta, lib. i. chaps. 23, 30, 33, 34. In this last chapter the obscure passage quoted above is omitted.

Britton, lib. i. chaps. vi. vii. vol. i. pp. 34-39.

VOL. III.

D