[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 (1); for the act of immoderate correction is unlawful. 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. But if the sovereign command or permit such diversion, it is said to be only misadventure; for then the act is lawful (n). In like manner, as by the laws both of Athens and Rome, he who killed another in the pancratium, or public games authorized or permitted by the state, was not held to be guilty of homicide (o). Likewise to whip another's horse, whereby he runs over a child and kills 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

(2) 1 Hale, P. C. 473, 474; Hawk. P. C. b. 1, c. 29, s. 5.

(m) Cod. 1. Ix. t. 14.

(n) Hawk, P. C. b. 1, c. 29, s. 8. (0) Plato de Leg. vii.; Ff. 9,

2, 7.

[consequence (p). And in general, if death ensues in consequence of a dangerous, idle, and unlawful sport, as 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 (q).

As for homicide se defendendo, upon a sudden affray (r), -this is also excusable rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned, as calculated to hinder the perpetration of an atrocious crime,] and where the slayer is himself free from all blame (s); [which is not only a matter of excuse, but of justification. But the selfdefence which we are now speaking of, 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 (t). 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 rencounter (u).

(p) Hawk. P. C. b. 1, c. 29, s. 3; Ward's case, 1 East, P. C. 270.

(1) 1 Hale, P. C. 472; Fost. 275; Hawk. P. C. b. 1, c. 30, s. 1.

(r) This is called by Mr. Justice
Foster, "homicide se defendendo
upon chance medley."-Fost. 275.

(s) Hawk. P. C. b. 1, c. 28, s. 24.
(t) Ibid. The slayer is however

This right of natural

no longer punishable by law, though it was formerly otherwise. Vide post, p. 143.

(u) Blackstone (vol. iv. p. 184) defines chance medley, to be such killing as appens in self-defence in the course of a sudden brawl. But it is clear that the term equally applies, though the killing in the course

[defence does not imply a right of attacking; for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence, but in sudden and violent cases; when certain and immediate suffering, would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible, or at least probable, means of escaping from his assailant.

It is frequently difficult to distinguish this species of homicide in self-defence,] upon sudden affray, [from that of manslaughter in the proper legal sense of the word ( x ). But the true criterion between them seems to be this: when both parties are actually combating, at the time when the mortal stroke is given,] or if the slayer was not at that time in immediate danger of death (y), [the slayer is guilty of manslaughter: but if the slayer hath not begun to fight, or having begun,] declines, or [endeavours to decline, any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence (z). For which reason the law requires, that the person who kills another in his own defence, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault,] before he gives the mortal stroke (a); and that, not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood (b). And though it may be cowardice, in time of

of a brawl shall be such as to amount to manslaughter. See stat. 24 Hen. 8, c. 5; Keyl. 67; 3 Inst. 55, 59; Hawk. P. C. b. 1, c. 30, s. 1; Fost. 275.

(x) 3 Inst. 55. (y) Fost. 277. (*) Ibid.

(a) Blackstone says (vol. iv. p.

185), "before he turns upon his assailant." But though a person retreating to the wall should give several wounds in the course of his retreat, yet if he gives no mortal one till he gets thither, it is homicide se defendendo only. 1 Hale, P. C. 479; Hawk. P. C. b. 1, c. 29, s. 15.

(b) If a man strike another upon

war between two [independent nations, to flee from an enemy, yet between two fellow-subjects the law countenances no such point of honour: because the sovereign and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves (d). In this the civil law also agrees with ours, or perhaps goes rather farther," qui cum aliter tueri se non possunt, damni culpam dederint, innoxii sunt" (e). The party assaulted, must therefore flee as far as he conveniently can, either by reason of some wall, ditch or other impediment, or as far as the fierceness of the assault will permit him (ƒ); for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm, and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice, as well as of the municipal law (g).

And, as the manner of the defence, so is also the time to be considered; for if the person assaulted, does not fall upon the aggressor till the fray is over, or when he is running away, this is revenge and not defence. Neither under the colour of self-defence, will the law permit a man to screen himself from the guilt of deliberate murder; for if two persons, A. and B., agree to fight a duel, and A. gives the first onset, and B. retreats as far as he safely can, and then kills A.; this is murder, because of the previous malice and concerted design (h). But if A., upon a sudden quarrel, assaults B. first, and upon B.'s returning the assault, A. really and bonâ fide flies; and, being driven to the wall, turns again upon B. and kills him: this may be se defendendo according to some of our writers (i): though others (k) have thought this opinion too favourable, inas

malice prepense, and then fly to the wall, and there kill him in his own defence, he is guilty of murder. Hawk. P. C. b. 1, c. 29, s. 17.

(d) 1 Hale, P. C. 481.

(c) Ff. 9, 2, 45.

(f) 1 Hale, P. C. 483.
(g) Puff. b. 2, c. 5, s. 13.
(h) 1 Hale, P. C. 479.

(i) Ibid. 482.

(k) Hawk. P. C. b. 1, c. 29, s. 17.

is at last reduced, Under this excuse

[much as the necessity, to which he originally arose from his own fault (1). of self-defence, the principal civil and natural relations are comprehended. Therefore master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other respectively, are excused; the act of the relation assisting, being construed the same as the act of the party himself (m).]

Excusable homicide, in both the species here described, was formerly considered as involving in it some degree of legal blame or punishment; and as distinguishable, in this respect, from that which was justifiable. In the case of misadventure the law presumed negligence, or at least a want of sufficient caution in him who was so unfortunate as to commit it: who therefore was not altogether faultless (n). [And as to the necessity which excuses a man who kills another] in a sudden fray [se defendendo, Lord Bacon entitles it necessitas culpabilis (o).] For it was always understood, (as before remarked,) that [the quarrel or assault arose from some unknown wrong, or some provocation in word or deed: and since in quarrels both parties may be, and usually are, in some fault-and as it scarce can be tried who was originally in the wrong-the law would not hold the survivor entirely guiltless. The law besides might have a further view, to make the crime of homicide more odious, and to caution men how they venture to kill another upon their own private judgment; by ordaining that he who slays his neighbour, without an express warrant from the law so to do, shall in no case be absolutely free from guilt.]

Nor was [the law of England singular in this respect. Even the slaughter of enemies required a solemn purgation among the Jews; which implies that the death of a man, however it happens, will leave some stain behind it.

(1) Vide sup. p. 139, n. (b). (m) 1 Hale, P. C. 484.

(n) Hawk. P. C. b. 1, c. 28, s. 24. (0) Elem. c. 5.