S. with an ash stick on the head so that he fell, and S. got CH. XXVI. up and ran away as far as he could, and N. followed S. with the stick in his hand to kill him if he could, and drove him to a wall situated between two houses which he could in no wise pass; and when S. saw that N. wanted to kill him with the stick, and that he could not avoid death unless he defended himself, he took a certain poleaxe and struck N. with it on the head, of which N. immediately died, and the said S. immediately after fled as far as he could. Wherefore the jurors said that S. killed N. in self-defence, and not by felony or of malice aforethought, and that he could not otherwise escape from death. Therefore S. is remitted to prison to wait for the mercy of the king in the custody of the sheriff. His chattels, xx. s., 2 whereof the sheriff is to answer, and then S. is to purchase a pardon, &c.

This case is followed by two others (286 and 287), in each of which the circumstances were nearly the same, and in each of which the person accused is said to have fled for the offence, and accordingly to have had his chattels confiscated. The purchase of the pardon for the death seems, however, to have been independent of the chattels.

Other cases on the same iter (Nos. 288 and 289) illustrate the difference then made between excusable and justifiable homicide. In one the jurors acquitted men who, when a person refused to be arrested for felony and “repug"nabat cum quodam gladio quantum potuit" killed him. The following cases are somewhat similar (289, 290):—

There is one statute of considerably later date which throws some further light on this subject. It is 24 Hen. 8, c. 5, passed in 1532, and entitled, “That a man killing "a thief in his defence shall not forfeit his goods." The statute recites with the verbosity characteristic of Henry VIII.'s statutes, that it had been doubtful whether a person who killed any one who attempted to rob or murder him in his own house, or on or near the highway, was to forfeit his goods "as any other person should do that by chance-medley 1 "Quend. polhack."

2 "Und. vie. r et puis purch. chře de pardon, &c."

3 66

Quidam Johannes filius de B. qui obiit velociter ipsum appropenquavit et caput ejus gladio amputavit ut ipsum qui se legi justic. non permisit."

CH. XXVI.

should happen to kill any other person in his defence," and enacted that for the future no forfeiture should be incurred in any such case, but that persons so killing should be entitled to be acquitted simply. This statute clearly proves that killing in self-defence did involve forfeiture of goods, as a rule, in 1532, whatever may have been the case in Bracton's time.

It is, I think, by no means improbable that (as 1 Foster suggested) this method of treating homicide in self-defence, or by accident, as matters requiring a pardon and possibly involving some forfeiture (though the evidence as to this in cases where there was no flight is not clear) may have been the last remnant of the old system of bot and wite, of which I have already spoken. In 1340 Englishry was abolished by 14 Edw. 3, st. 1. c. 4, which recites that "Moultz des mes"chefs sont avenuz en divers pays d'Engleterre qils "navoient mis conisance de presentement d'Englescherie "parquoi les communes des countes estoient sovent devant "les justices errantz amercesz a grant meschief du people." Accordingly, "Soit l'Englescherie et le presentement dycel pur toutz jours ouste."

The abolition of Englishry, which was a remnant of the effects of the conquest of England by Frenchmen, was by no means an unnatural step on the eve of the great war in which the English conquered France. The result of it was to cut away the ground of the distinction taken by Bracton between voluntary homicide in general and murder. The name "murder," however, had no doubt come into common use, though the presentment of Englishry had, as the statute tells us, come to be so antiquated and unfamiliar that fines on the county for the want of it were regarded as mere acts of oppression. The word murder therefore would naturally become the name of the worst kind of homicide.

Homicide would thus consist of (1) murder, indistinctly conceived of as the worst species of the offence; (2) homicide per infortunium et se defendendo, which, though blameable to some extent, involved no other consequences than expense in getting a pardon, forfeiture of goods, and imprisonment

1 P. 287.

before trial; and (3) justifiable homicide, which entitled a man to be acquitted. The large number of cases of homicide which, without belonging to the very worst class of all, were neither justifiable nor cases of misfortune or self-defence, were distinguished by no particular name, but were capital felonies, though not called murders.

The next step in the history of the later definition consists in the adoption of the expression "malice aforethought' the characteristic specific distinction of murder as distinguished from other kinds of homicide. The forms of the special findings of the jury in the cases to which I have already referred show how it came about. They show that in order to entitle a man to a pardon on the ground of his having committed homicide se defendendo, it was necessary for the jury to find that he did it "in self-defence and not by felony or of "malice aforethought;" and as the special finding is required by the Statute of Gloucester, which abolished the writ "de odio et atia," I think it highly probable that "malice aforethought," the absence of which juries had to find specially is the equivalent of the "odium et atia" the presence of which in the accuser-not in the accused—had to be found specially before the accused had a right to the writ "de ponendo in "ballium."

The next incident to be mentioned is a note in the Yearbook, 21 Edw. 3, p. 17в. (A.D. 1348). It is in these words:-1" Note-That a man was convicted of having killed "another in self-defence, and, notwithstanding, his chattels "were forfeited, though his life is safe. The reason is, that "at common law a man was hanged in this case as much "as if he had done it feloniously, and, although by the sta"tute (Marlbridge, 52 Hen. 3, c. 25) the king has spared "his life, his goods remain under the common law." This is a remarkable passage, as it shows that in the course of the eighty-one years, between the Statute of Marlbridge (1267) and 21 Edw. 3 (1348), the old law had been

1 "Nota q un home fut trove culp q il avoit occis un autre se defend. et "cela nient obstant ses chateux fur forfaits, comt q. sa vie sera sauve; et la cause fut parce qu'al comon ley home fut pendu in cet cas auxi avant si come "il eut ce fait felonisement; et coment q le Roy ne p le statut ait relesse sa "vie ses chateux demeurent al comon ley.'

CH. XXVI.

CH. XXVI. completely forgotten. The note cited is obviously founded upon a mistake as to the meaning of the Statute of Marlbridge. The words " Murdrum de cetero non adjudicetur coram justiciariis ubi infortunium tantummodo adjudicetur" must have been construed, "Killing by misadventure shall not be "held before the justices to be murder," in ignorance of the fact that "murder" meant the fine on the township. The recital of the statute of 1340 abolishing Englishry shows how natural the mistake was. It seems, however, that this mistake had the practical result of attaching the forfeiture of goods as a consequence to a verdict of "se defendendo."

It is remarkable that the belief in the recent existence of such a monstrous state of the law as that a man should be hung for killing another in self-defence, should have found ready acceptance with an official reporter as the author of the Year-book in question was. 1 Coke, however, accepts his view without hesitation.

1

We come next to a remarkable entry in the 2 Parliament Roll for 1389 (13 Rich. 2). At this period the royal power was at a lower ebb than it ever fell to again till the civil wars. The Commons petition the king against the abuse of charters of pardon for murder, treason, and rape which "ount "este trop legerement grauntz devant ces heures a graunt con"fort de toutz male fesors." They pray that no such pardons may be granted, and that if any archbishop or duke asks for such a charter he may forfeit to the king £1,000, a bishop or earl 1,000 marcs, an abbot, prior, baron or banneret 500 marcs, a clerk, knight bachelor, or person of less estate 200 marcs and be imprisoned for a year. Every pardon so granted to be void, and the person who has solicited the pardon to be liable to the penalty as soon as the offender is convicted. The petition implies that it was then usual to solicit and to grant pardons for the gravest offences before trial, which pardons could be pleaded at the trial.

The king's reply is, "Le roy voet sauver sa liberte et

1 Coke, Second Institute, upon Stat. de Marlbridge.
23 Rot. Par. 268a.

3 Here " Liberty" is used in its true sense of franchise or special power.
Somewhere, I think in Clarendon, it is said that the king of England is
"free and absolute as any king in the world, and this was the real meaning

as

regalie comes ses progenitours ount faitz devaunt ces heures," and it then goes on to give a modified assent to the petition of the Commons, "Null chartre de pardon desore soit alowe "devant qconq justice pur murdre, mort d'ome occis par 'agait assaut ou malice purpense, treson ou rape de "femme si mesme la murdre ou mort d'ome occis par agait "assaut ou malice purpense, treson, ou rape de femme ne "soient especifiez en meme la chartre. Et si chartre de mort "d'ōme soit alegge devant qconq justicez, en quele chartre ne soit especifie q celuy de qi mort ascun tiel soit arraigne "fuist mourdrez ou occis par agaite, assaut, ou malice purpense enquereront les justices par bone enqueste de visne ou le "mort fuist occis, s'il fuist mourdrez, ou occis par agaite, as"saute, ou malice purpense. Et s'ils trovent q'il fuist mourdrez, "lou occis par agait, assaut, ou malice purpense, soit la chartre "disalowe, et soit fait entre solonc ceo q la ley demaunde." It is also provided that when any person solicits such a pardon, the chamberlain, or vice-chamberlain, who endorses the bill is to put upon it the name of that person. The pardon is to pass both the Privy Seal and the Great Seal, "except in cases "where the chancellor can grant it by his office without speaking to the king "—words which obviously refer to the pardons of course, already referred to in cases of self-defence, misfortune, and insanity. Somewhat lighter penalties than those suggested by the Commons are imposed upon persons soliciting pardons in such cases. This appears in the Statute Book as 13 Rich. 2, s. 2, c. 1. The penalties imposed upon persons soliciting pardons were repealed three years afterwards by 16 Rich. 2, c. 6 (1392), but the rest of the statute is still in force. It has been little, if at all, noticed by the writers on the subject; for instance, Coke passes it over, and so do Hale and Foster. It seems to me to form the first statutory recognition of the expression "malice aforethought," which as I have shown had been previously employed by juries in finding special verdicts of se defendendo. It may, indeed, be

of the phrase "free monarchy," which eminent persons in our own time employed, in order to give an attractive appearance to monarchical government. This is almost identical with the definition of "assassinat " in the Code Pénal, art. 296: "Tout meurtre commis avec premeditation ou guet-à-pens "est qualifie assassinat."

CH. XXVI.