CH. XXVI. topics dealt with by Bracton, and adds to the cases stated by him, Ceux ausi qi fausement par louver ou en autre manere "ount nul homme dampne ou fet dampner a la mort par faus "serment." He also states their punishment. 1" Si juge"ment face encountre eux si lour soit ajugé mort pur mort; "et lour biens moeble soint nosz et lour heyrs desheritez. Et volums aver de lour tenementz de qi qe unques soint "tenuz le an et le jour."

The 2 Mirror contains little more on this head than an abridgment of Bracton.

As I have already observed, there are no text writers upon the criminal law between Bracton and his followers and Coke. The Year-books, so far as I can ascertain, make few references to the subject of the definition of homicide, though a large proportion of the cases in Fitz Herbert relate to the procedure upon prosecuting for that offence. Some points, however, in the early history of the law are still ascertainable.

In the first place I may observe that murders of a particular class were separated from other cases of homicide by being classified as petty treason. The first reference to such an offence which I can quote is in the 75th chapter of the Leges Henrici Primi, which describes it as being punished by flaying alive. "Si quis dominum suum occidat, si capiatur, nullo modo se redimat, set de comacione vel excoriacione severagentium animadversione dampnetur ut diris tor"mentorum cruciatibus et male mortis infortuniis infelicem prius animam exhalasse, quam finem doloribus excepisse videatur; et si posset fieri, remissionis amplius apud inferos "invenisse, quam in terra reliquisse protestetur." The offence is elaborately compared to the sin against the Holy Ghost. In Bracton there is no special reference that I know of to this offence. Something a little like it is mentioned in * Britton, but in the statute of treasons (25 Edw. 3, st. 5, c. 2, A.D. 1350) it is fully defined: "And, moreover, there is another manner "of treason, that is to say, when a servant slayeth his master, "or a wife her husband, or when a man, secular or religious, 2 Ch. i. s. 9. 3 Thorpe, i. p. 579. Britton, book i. ch. ix. vol. i. p. 40.

1 Vol. i. p. 35.

2

slayeth his prelate to whom he oweth faith and obedience."1 CH. XXVI. The use of this subdivision of murder I do not understand. There was some additional severity in the punishment, and accessories before and after were all principals, but the offence was originally clergyable as well as murder. It was, as I have already said, excluded from clergy in 1496 by 12 Hen. 7, c. 7. It continued to exist as a separate offence till the year 1828, when it was enacted by 9 Geo. 4, c. 31, s. 2, that every offence which before the passing of that act would have amounted to petit treason should be deemed to be murder only and no greater offence.

A matter of more importance and interest, though it is in itself extremely obscure, is the origin of the division of the crime of homicide into different degrees. In Bracton, as I have shown at length, "murder " meant secret killing, involving a fine on the township. Homicide or manslaughter was the general name under which every sort of slaying was comprehended, and those forms of slaying which happened by pure accident or inevitable necessity were regarded as not being criminal. When the necessity was not inevitable, or when the accident was one for which the party was to some extent to blame, he was, according to Bracton, responsible.

The precise consequences of " tenetur " are not mentioned, and nothing is said as to the way in which the fact that the necessity was not inevitable, or the accident not free from blame, was to be decided. A series of authorities, which I now proceed to examine, and which were long misunderstood, show, I think, that this part of the law of homicide was the first to attract the attention of the courts, and that it led by degrees to the present law on the subject. I will give the authorities in the order of time. The first authority. is a passage in Bracton which I have hitherto passed over. In stating the cases in which the hundred is not to pay the fine called murdrum, he says that in the case of those who die by misadventure no fine shall be paid (nullum erit

Long afterwards there seems to have been a doubt whether a child who killed his father or mother was guilty of petty treason, but it was held that it was not unless he acted as servant to them.-Lambard, 245. 3 Bracton, ii. 388.

Vol. i. p. 463.

D

CH. XXVI. murdrum), although in certain parts of the country the custom is otherwise. In 1267, by the statute of Marlbridge (52 Hen. 3, c.25), it was enacted that "murdrum de cetero non adjudicetur coram justiciariis ubi infortunium tantummodo "adjudicatum est, sed locum habeat murdrum in interfectis per feloniam et non aliter." This, no doubt (though it was afterwards misunderstood), means that the local customs referred to by Bracton should be abolished, and that the principle laid down by him should be observed throughout England. It is further to be observed that there was no need to refer in this act to the cases of homicide under a necessity which might have been avoided. In a case where this happened the person who caused the death must of course be known, and when the person by whom the death was caused was known, no " murdrum" was due from the township. The only cases in which the act could apply would be cases in which some stranger who could not be identified as an Englishman was found dead under circumstances which led to the inference that his death was accidental, e.g. if he were found drowned with no marks of violence. The statute therefore throws little light on the subject, though its words, when rightly understood, seem to imply that killing "per infortunium" was in those days so far from being felony that the two were contrasted with each other.

The next authority is the Statute of Gloucester, in 1278 (6 Edw. 1, c. 9). It is in these words: "Le Rey comaunde qe nul brief de la chauncelerie seit graunte de mort de home "de enquere si home occie autre par mesaventure ou sei "defendaunt on en autre manere par felonie, mes si tel seit en prison e devaunt justices erraunz ou justices assignez a Ghaole deliverer se met in pais de bien et de mal e len trusse par pais qil eit fet se defendaunt ou par mesaventure "dunqe par record des justices face le Rei sa grace si lui plest."

That is, "The king commands that no writ shall be "granted out of the chancery of the death of a man to "inquire whether a man killed another by misadventure "or in self-defence, or in other manner 1by felony, but if

1 The translation in the Statute Book is "in other manner without felony," which is clearly wrong. Coke, in his exposition of the Statute of Gloucester

"such a person is in prison and before the justices in eyre or CH. XXVI. "justices of gaol delivery, puts himself on the country for "good or evil, and if it is found by the country that he "did it in self-defence or by misadventure then, on the "record of the justices, the king shall pardon him if he " will."

This act by its opening words abolished the writ de odio et atid, which was issued, as I have already explained, in order that a jury might say whether a person accused of homicide was accused duly or maliciously in order that in the latter case he might be bailed. It would seem from this statute that the commonest cases of accusations de odio et atiâ were cases of misadventure or self-defence. The survivors of the deceased in such cases were likely to accuse of wilful homicide those whose negligence or violence had caused their relation's death; and the statute provides that these cases are no longer to be bailable, and that when the trial comes on, the jury, if they think that the case was one of self-defence or misadventure, are neither to convict nor acquit, but to find specially to that effect, upon which the king, if he pleases, may, upon the record or report of the justices, pardon the party. What happened if the king did not pardon the party does not appear. Coke thinks that the words "if he pleases 99 66 are but words of reverence to the "king, for the king is obliged ex merito justitiæ to grant the pardon." At the same time the necessity for a pardon shows that some degree of guilt was supposed to be attached to killing by misadventure or in self-defence.

Another act, which throws some light on the subject, is the statute 21 Edw. 1, st. 2, A.D. 1293, "de malefactoribus in parcis." This act, "ut malefactores in forestis, chaceis parcis "et warrennis de cetero plus timeant in eadem intrare et "malefacere quam consueverunt," provides that the foresters, parkers, or warreners, if they find trespassers who will not

(Second Institute, p. 314), prints "sans felony," and translates without felony, but the "par felony" appears in the Statutes of the Realm, the most authentic of all the editions of the Statute Book, and in Pickering's Statutes, where the translation is "without felony." Foster follows Coke, Discourse of Homicide, p. 282.

1 Second Institute, 316.

CH. XXVI.

yield themselves "after hue and cry made to stand unto the 'peace, but do continue their malice," are not to be troubled or punished if they kill any such trespasser in arresting him, but they are warned against acting maliciously.1 This act supplies a case of homicide which was regarded as absolutely justifiable. The forester or park-keeper was not to be "pun"ished or disturbed" if he acted within the powers given by the act.

In 1310 2an entry appears upon the Parliament Roll of 3 Edw. 2, in answer to a petition complaining of the ease with which pardons were granted to homicides and other offenders, in these words: "Le Roy voet que desoremes ne soit graunte "pardon de felonie forsque en cas ou anciennement soleit

estre grantez cest a saver, si hom tue autre par mesad"venture ou soy defendant, ou en deverie" (insanity) "et ce soit trove par record de justices." This seems to show that in such cases pardons were granted as of course.

The result of these authorities seems to be that, in the end of the thirteenth and the beginning of the fourteenth centuries, juries were bound in cases of trials for homicide, where the defence was misadventure or self-defence, to find specially that such was the case, upon which the king was bound to grant his pardon. Probably he would do so upon terms as to fines and forfeitures which would depend on the degree of blame which might be considered to attach to the defendant by reason of the avoidable nature of the necessity under which he had killed the deceased, if the case was one of self-defence; or the amount of carelessness he had shown if the case was one of accident. Several entries in the Yearbooks, given in 3 Fitz Herbert, throw light upon this. The following are instances:

S. being indicted for the death of N. and pleading not guilty, the jury found that S. and N. quarrelled on their way to the public-house, and in the course of the quarrel N. struck

1 This act remained in force till it was repealed by 7 & 8 Geo. 4, c. 27, and strangely enough it was repealed, "as to India," by 9 Geo. 4, c. 74,

s. 125.

21 Rot. Par. 443b.

Corone, 284, 285, 286, and 287. ampton, A.D. 1330.

All in 3 Edw. 3-eyre of North