as to render it justifiable, or at least excusable; or it is felonious (d). 1. Justifiable homicide is of divers kinds. First, such as is occasioned by the due execution of public justice, in putting a malefactor to death who hath forfeited his life by the laws of his country. [This is an act of necessity, and even of civil duty; and, therefore, not only justifiable, but commendable, where the law requires it. But the law must require it, otherwise it is not justifiable: therefore, wantonly to kill the greatest of malefactors, (such as a felon or a traitor, attainted or outlawed,) deliberately, uncompelled and extrajudicially, is murder (e). For, as Bracton very justly observes, " istud homicidium, si fit ex livore, vel delec"tatione effundendi humanum sanguinem, licet justè occidatur "iste, tamen occisor peccat mortaliter, propter intentionem corruptam" (f). And, further, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder (g). And, upon this account, Sir Matthew Hale himself, though he accepted the place of a judge of the Common Pleas under Cromwell's government, (since it is necessary to decide the disputes of civil property in the worst of time,) yet declined to sit on the Crown side at the assizes or to try prisoners, having very strong objections to the legality of the usurper's commission (h); a distinction, perhaps, rather too refined, since the punishment of crimes is at least as necessary to society as maintaining the boundaries of property. Also such judgments, when legal, must be executed by the proper officer or his appointed deputy: for no one else is required by law to do it; which requisition (d) Blackstone describes homicide (vol. iv. p. 177) as of three kinds: justifiable, excusable, and felonious; and this accords with the division of Hawkins; but there appears, under the existing law, to be no practical distinction between justifiable and excusable homicide. (Vide post, p. (e) 1 Hale, P. C. 497. (g) Hawk. P. C. b. 1, c. 28, s. 5; [it is, that justifies the homicide. If another person doth it of his own head, it is held to be murder (i), even though it be the judge himself (k). It must, further, be executed servato juris ordine-it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versâ, it is murder; for he is merely ministerial, and, therefore, only justified when he acts under the authority and compulsion of the law. But if he changes one kind of death for another, he then acts by his own authority; which extends not to the commission of homicide,] otherwise than as according to the sentence; [and, besides, such licence might occasion a very gross abuse of his power. The sovereign, indeed, may remit part of a sentence,-as, in the case of treason,] he has often remitted (more particularly in the case of a peer), all but the beheading; but this was no change, no introduction of a new punishment (7); and in the case of an ordinary capital felony, [where the judgment is to be hanged, the sovereign, it hath been said, cannot legally order even a peer to be beheaded (m).] Secondly, justifiable homicide may be [committed for the advancement of public justice;] as in the following instances: 1. Where an officer or his assistant, in the due execution of his office, either in a criminal or civil case, arrests or attempts to arrest a party who resists, and is consequently killed in the struggle(n); 2. Where, in case of a riot or rebellious assembly, the officers or their assistants kill any of the mob, in the endeavour to disperse them; which is justifiable [both at common law and by the Riot Act, 1 Geo. I. c. 5(0);] 3. [Where the prisoners in a gaol assault the gaoler or 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 (i) 1 Hale, P. C. 501; Hawk. P. C. b. 1, c. 28, s. 9. (k) Dalt. Just. c. 150. (1) It was not at least, as the sentence stood in Blackstone's time. (4 Bl. Com. p. 92.) (m) 3 Inst. 52, 212. (n) Foster, 270, 309; 1 Hale, P.C. 494. (0) 1 Hale, P. C. 495; Hawk. P. C. b. 1, c. 65, ss. 11, 12. (p) 1 Hale, P. C. 496. or his assistant, in the due execution of his office, arrests or attempts to arrest a party for felony (o), or for a dangerous wound given; and the party having notice thereof flies, and is killed by such officer or assistant in the pursuit (p); 5. Where, upon such offence as last described, a private person in whose sight it has been committed, arrests or endeavour to arrest the offender; and kills him in resistance or flight, under the same circumstances as above mentioned with regard to an officer (q). But in all these cases, [there must be an apparent necessitythat 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 (r), is justifiable by the law of nature (s); and also by the law of England as it stood so early as at the time of Bracton (t),] and as it stands at the present day (u). [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 (v), [the slayer shall be acquitted and discharged (x). This reaches not (0) But the officer is not protected if he kill a man apparently committing a misdemeanor, though the crime be really a felony. The Queen v. Dodson, 20 L. J. (M. C.) 57. (p) Fost. 271. (1) Fost. 271; 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. (r) Fost. 275; Hawk. P. C. b. 1, c. 28, ss. 21, 24. (s) Puff. L. of N. 1. ii. c. 5. (t) L. 3, tr. 2, c. 36. (u) See Mawgridge's case, Keyl. 128, 129. (v) Fost. 274. (x) 1 Hale, P. C. 488; Fost. 274. 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.) [to any crime unaccompanied with force,-as picking of pockets; or to the breaking open of any house in the day time, unless it carries with it an attempt of robbery,] arson, murder, or the like (y). [So the Jewish law, which punished no theft with death, makes 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" (z). 66 At Athens, if any theft was committed by night, it was lawful to kill the criminal, if taken in the fact (a): 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 (b): 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 (c): and so also, according to Selden, stood the law in the Jewish republic (d). The English law likewise justifies a woman killing one who attempts to ravish her (e): and so too 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 (f). 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 (g).] (y) 1 Hale, P. C. 488; 1 East, P. C. c. 5, s. 44; Hawk. P. C. b. 1, c. 28, s. 23; Fost. 274; see also 24 Hen. 8, c. 5, cited sup. p. 134, n. (x). (z) Exod. xxii. 2. (a) Potter, Antiq. b. i. c. 24. (b) Cic. pro Milone, 3; 2, 4. (c) Ff. 9, "Divus Hadrianus rescripsit 64 eum qui stuprum sibi vel suis infe "rentem occidit, dimittendum.”—Ff. 48, 8, 1. (d) De Legibus Hebræor. 1. iv. c. 3. (e) Bac. Elem. 34; Hawk. P. C. b. 1, c. 28, s. 21; Fost. 274. (f) 1 Hale, P. C. 485, 486. (g) Blackstone here proceeds (vol. iv. p. 181) to give his opinion of the principle upon which homicide be Fourthly, there is one species of justifiable homicide [where the party slain is equally innocent, as he who occasions his death. And yet this homicide is also] justifiable, [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; as, among others, in 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 thrusts the other from it, whereby he is 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 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 comes justifiable, when for the prevention of crime. He says, "The one uniform principle that runs "through our own and all other laws "seems to be this, that where a "crime, in itself capital, is endea"voured to be committed by force, "it is lawful to repel that force by "the death of the party attempting." And at the same time he combats the doctrine of Locke's Essay on Government, p. 2, c. 5, "That all man"ner of force, without right, upon a "man's person, puts him in a state "of war with the aggressor; and, of "consequence, being in such a state "of war, he may lawfully kill him "that puts him under this unnatu"ral restraint." We may be al lowed, however, to question the soundness of the former as well as the latter opinion. If the former be correct, it will follow that, as rape has now ceased to be capital, the justification of homicide for the prevention of rape is also taken away; but there can be no doubt that it remains in full force. (h) Blackstone says excusable (vol. iv. p. 186); but it seems clear that this is a case of justifiable and not merely excusable homicide; and it is so ranked by Hawkins, P. C. b. 1, c. 28, s. 26. (i) Elem. c. 5. See also Hawk. P. C. b. 1, c. 28, s. 26. (k) Hawk. P. C. b. 1, c. 29, ss. 2, 6. |