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officer, and he in his defence kills any of them; which is justifiable, for the sake of preventing an escape (p) ; 4. Where an officer or his assistant, in the due execution of his office, arrests or attempts to arrest, a party for felony, and the party having notice thereof flies, and is killed by such officer or assistant in the pursuit (2); 5. Where, upon such offence as last described, a private person in whose sight it has been committed, arrests or endeavours to arrest the offender; and kills him in resistance or flight, under the same circumstances as above mentioned with regard to an officer (). [But in all these cases, there must be an apparent necessity—that is, it must be shown that the party could not be otherwise secured, the riot could not be suppressed, the prisoners could not be kept in hold, unless such homicide was committed; otherwise, without such absolute necessity, it is not justifiable.

Thirdly, such homicide as is committed for the prevention of any forcible and atrocious crime (s), is justifiable by the law of nature (t); and also by the law of England as it stood so early as at the time of Bracton (u), and as it stands at the present day ().] If any person attempts the robbery or murder of another, or attempts to break open a house in the night time, and shall be killed in such attempt, either by the party assaulted, or the owner of the house, or the servant attendant upon either, or by any other person present and interposing to prevent mischief, the slayer shall be acquitted and discharged (y). This

(p) 1 Hale, P. C. 496.

(a) Fost. p. 271. See The Queen v. Dodson, 20 L. J. (M. C.) 57.

(r) Fost. ubi sup. ; 2 Hale, P. C. 77, 82. As to the killing by a private person who arrests on suspicion only, and is resisted, see 2 Hale, P. C. 83, 84; Fost. 318. It seems it is not justifiable.

(s) Fost. 275; Hawk. P. C. b. 1, c. 28, ss. 21, 24.

(t) Puff. L. of N. 1. ii. c. 5. (u) L. 3, tr. 2, c. 36.

(a) See Mawgridge's case, Keyl. 128, 129.

(y) Fost. 274; 1 Hale, P. C. 488. This was expressly provided by the statute 24 Hen. 8, c. 5; and though that statute was repealed by 9 Geo. 4, c. 31 (now itself repealed by 24 & 25 Vict. c. 95), its repeal has made no alteration of the law as laid down in the text,-the statute of Hen. 8, having been made in affirmance of the common law. (See Fost. 275.)

reaches not to any crime unaccompanied with force,-as, for example, the picking of pockets; nor to the breaking open of a house in the day time, unless such entry carries with it an attempt of robbery, arson, murder, or the like (≈). [So the Jewish laws, which punish no theft with death, made homicide only justifiable in case of nocturnal housebreaking; "if a thief be found breaking up, and he be smitten that "he die, no blood shall be shed for him; but if the sun be "risen upon him, there shall blood be shed for him, for he "should have made full restitution" (a).

At Athens, if any theft was committed by night, it was lawful to kill the criminal, if taken in the fact (b); and by the Roman Law of the Twelve Tables, a thief might be slain by night with impunity; or even by day, if he armed himself with any dangerous weapons (e): which amounts very nearly to the same as is permitted by our own constitutions. The Roman law, also, justifies homicide when committed in defence of the chastity either of one's self or relations (d): and so too, according to Selden, stood the law in the Jewish republic (e). The English law, likewise, justifies a woman killing one who attempts to ravish her (f); and so the husband or father may justify killing a man, who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other (g). And no doubt the forcibly attempting a crime of a still more detestable nature may be equally resisted by the death of the unnatural aggressor (h).

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[Fourthly, there is one species of justifiable homicide where the party slain is equally innocent as he who occasions his death; the justification arising from the great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish. To this head belongs that case mentioned by Lord Bacon, where two persons being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrust the other from it, whereby he was drowned (i).

2. Excusable homicide is of two sorts, either per infortunium, by misadventure; or se defendendo, upon a sudden affray.

Homicide per infortunium, is where a man doing a lawful act without any intention of hurt, unfortunately

perty against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means, and that the mischief done by, or which might reasonably be anticipated from, the force used is not disproportioned to the injury or mischief which it is intended to prevent. See, also, the cases of R. v. Moir, Ann. Reg., vol. 72, p. 344, and R. v. Hewlett, 1 F. & F. 91, referred to in note B. appended to the same Report.

(i) Elem. c. 5. Blackstone (vol. iv. p. 186) treats the homicide sup posed in the text as excusable, not justifiable. But see as to this Hawk.

P. C. b. 1, c. 28, s. 26. The case is alluded to in the Report of the Criminal Code Bill Commission

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[kills another, as where a man is at work with a hatchet, and the head thereof flies off and kills a stander-by; or where a person is shooting at a mark, and undesignedly kills a man (k): for the act is lawful, and the effect is merely accidental. So where a parent is moderately correcting his child, a master his apprentice or scholar, or an officer punishing a criminal, and happens to occasion his death, it is only misadventure, for the act of correction was lawful; but if he exceeds the bounds of moderation either in the manner, the instrument, or the quantity of punishment, and death ensues, it is manslaughter at least, and in some cases, according to the circumstances, murder; for the act of immoderate correction is unlawful (1). Thus by an edict of the Emperor Constantine, when the rigour of the Roman law with regard to slaves began to relax and soften, a master was allowed to chastise his slave with rods. and imprisonment; and if death accidentally ensued, he was guilty of no crime; but if he struck him with a club or a stone, and thereby occasioned his death; or if, in any other yet grosser manner, "immoderate suo jure utatur,— tunc reus homicidii sit” (m).

But to proceed. A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act; and so are boxing and sword playing, the succeeding amusements of their posterity; and therefore if a knight in the former case, or a gladiator in the latter, be killed, such killing is manslaughter and felony (n). Likewise to whip another's horse, whereby he runs over a child and kills

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[him, is held to be accidental in the rider, for he has done nothing unlawful; but manslaughter in the person who whipped him, for the act was a trespass, and at best a piece of idleness, of dangerous consequence (o). And in general, if death ensues in consequence of a dangerous, idle, and unlawful sport, as, for example, the shooting or casting stones in a town, or the barbarous diversion of cock-throwing,-in these and similar cases the slayer is guilty of manslaughter, and not misadventure only; for these are unlawful acts (p).

As for homicide se defendendo, upon a sudden affray, this is also excusable, rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned, which is calculated to hinder the perpetration of an atrocious crime, and where the slayer is himself free from all blame (q); which is not only a matter of excuse, but of justification. But the selfdefence of which we are now speaking, is that whereby a man may protect himself from an assault or the like, in the course of a sudden brawl or quarrel, by killing him who assaults him; in which latter case the law presumes both parties to be in some degree in fault (r). And this is one instance of what the law expresses by the word chance medley; or, as some chose rather to write it, chaud medley: the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion; both of them of pretty much the same import : but the former is, in common speech, too often erroneously applied to any manner of homicide by misadventure; whereas it appears by the statute 24 Hen. VIII. c. 5, and our antient books, that it is properly applied to such killing as happens upon a sudden encounter (s). This right of

(0) Hawk. P. C. b. 1, c. 29, s. 3;
Ward's case, 1 East, P. C. 270.
(p) 1 Hale, P. C. 472; Fost. 275;
Hawk. ubi sup. c. 30, s. 1.

(2) Hawk. ubi sup. c. 28, s. 24.
() Ibid. The slayer is, how-

ever, no longer punishable by law, though it was formerly otherwise. Vide post, p. 58.

(s) Blackstone (vol. iv. p. 184) defines chance medley, to be such killing as happens in self-defence in

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