With regard to the second; every man's house is deemed, by the law, to be his castle; and the law, while it invests him with the power, enjoins on him the duty, of the commanding officer. "Every man's house is his castle," says my Lord Coke, in one of his reports," and he ought to keep and defend it at his peril; and if any one be robbed in it, it shall be esteemed his own default and negligence." For this reason, one may assemble people together in order to protect and defend his house. a

3. Homicide is frequently enjoined by the judgment of courts agreeably to the directions of the law. This is the case in all capital punishments. This species of homicide is usually classed with those kinds which are justifiable. The epithet is true so far as it goes. But it goes not far enough to characterize the conduct of the officer to whom it relates. One may be justifiable in doing a thing, in omitting to do which he may be equally justified. But this is not the case with a sheriff, or other ministerial officer of justice. He is commanded to do

execution.

II. As homicide is enjoined, when a sentence of death is to be executed; so it is sometimes justified in the execution of other process from the courts of jus

tice.

When persons, who have authority to arrest, and who use the proper means for that purpose, are resisted in doing so, and the party making resistance is killed in the struggle; this homicide is justifiable. If a person, who interposes to part the combatants in an affray,

27. Rep. 6.

a

1. Hale. P. C. 547. 4. Bl. Com. 223.

Eden. 209. Fost. 270. 1. Hale. P. C. 494.

and gives notice to them of his friendly intention, is assaulted by any of them, and, in the struggle, happens to kill; this is justifiable homicide. For, in such cases, it is the duty of every man to interpose, that mischief may be prevented, and the peace may be preserved. This rule is founded in the principles of social duty.* If a woman, in defence of her honour, kill him who attempts the last outrage against it; this homicide is justifiable. In the same manner, the husband or father may justify the killing of one, who makes a similar attempt upon his daughter or wife. In these instances of justifiable homicide, the person who has done it is to be acquitted and discharged, with commendation ra'ther than censure. f

d

e

III. Homicide by misfortune happens, when a man, in the execution of a lawful act, and without intending any harm, unfortunately kills another. The act must not only be lawful, but must also be done in a lawful manner. If a master, correcting his servant moderately, happens to occasion his death, it is only misadventure; but it is much other

for the act of correction was lawful:

wise, if he exceed in the manner, the instrument, or the quantity of the correction.

h

This species of homicide, if found by a jury, still, in strict law, as it is received in England, subjects the unfortunate-I cannot call him the guilty-party, to a forfeiture of his personal estate; or, as some say, only

a part of it. He has, it is true, his pardon, and a writ for restoring his goods, as a matter of course, when he pays the fees for them.i Sir William Blackstone seems to make an apology for this forfeiture, by observing, that, in the case of homicide by misadventure, the law presumes negligence, or, at least, a want of sufficient caution, in him who was so unfortunate as to commit it; who, therefore, is not altogether faultless.; The law itself is severe in this instance-confessedly so: but the apology for it seems to be founded on a principle, rigorous and totally inadmissible.

Shall the unfortunate be necessarily viewed as also incautious? Shall negligence be presumed by the law, when misadventure has been found by the jury? No. The doctrine is inadmissible. It is rigorous. Accidents of this lamentable kind may be the lot of the wisest and most cautious, and of the best and most humane among men: they most frequently happen among those who are relations or friends; because those associate most frequently together. In such cases, to ascribe the calamity to a conduct "not altogether faultless;" to presume negligence," when nothing existed but bitter misfortune, would, indeed, be to "heap affliction upon the head of the afflicted," and to stab afresh a heart still bleeding with its former wound. It would be to aggravate the loss of even a brother, a parent, a child, a wife; if of aggravation such a loss, in such circumstances, is susceptible.

66

k

The law itself, in this instance, is, as has been mentioned, severe-confessedly so. The fees of office have probably, in this as in too many other instances, prevented j Id. 186.

i 4. Bl. Com. 188.

k Fost. 264.

improvement. "I therefore think," to use the expressions of a great, master of criminal law, "those judges, who have taken general verdicts of acquittal in plain cases of homicide by misfortune, have not been to blame. They have, to say the worst, deviated from ancient practice in favour of innocence, and have prevented an expense of time and money, with which an application to the great seal, though in a matter of course, as this undoubtedly is, must be constantly attended." It is proper to observe that this late practice of the judges is mentioned by Sir William Blackstone, in terms which intimate his approbation. "

m

IV. Excusable homicide is that which, on a sudden affray" between parties, is given in the necessary defence of him who wishes and endeavours to quit the combat. This is carefully to be distinguished, because it is materially different, from that kind of self defence which is justified or enjoined to prevent the perpetration of the most atrocious outrage upon one's person or habitation."

The species of homicide, which we are now to consider, though excusable by the benignity of the law, is still culpable. It is done, when a person, engaged in a sudden affray, quits the combat before a mortal wound is given, and retreats or flies as far as he can with safety ; and then, urged by mere necessity, kills his adversary for the preservation of his own life." This species approaches near to manslaughter; and, in experience, the boundary between them is, in some places, difficult to be

1 Fost. 288.

m 4. Bl. Com. 188.

n Fost. 276.

• 4. Bl. Com. 183.

P Fost.275.

discerned: it is marked, however, in the consideration of law. In both species, it is supposed that passion has kindled on each side; and that blows have passed between the parties. But in the case of manslaughter, either the combat on both sides continues till the mortal stroke is given, or the party giving it is not in imminent danger: whereas, in the case of excusable homicide, he who is excused declines, before a mortal stroke given, any further combat, and retreats as far as he can with safety; and then, through mere necessity, and to avoid immediate death, kills his adversary.

Though this species of homicide is very different from that which happens by misfortune; yet the judges, in one as well as the other, permit, if not direct, a general verdict of acquittal."

V. To alleviated homicide, the term manslaughter is appropriated. When the epithet alleviated is applied to this species of homicide, it must be understood only as compared with that which is malicious: for manslaughter, though in this view an alleviated, is a felonious homicide. It is the unlawful killing of another, without malice; and may be either voluntarily, upon a sudden heat or provocation; or involuntarily, but in the commission of some unlawful act. When manslaughter is voluntary, it is distinguished from excusable homicide by this criterionthat, in the latter case, the killing is through necessity, and to avoid immediate death; whereas, in the former, there is no necessity at all; it being a sudden act of revenge. When manslaughter is involuntary, it is distinguished from homicide by misfortune by this criterion—

1 Fost. 275. 277. 4. Bl. Com. 185. VOL. III.

N

r 4. Bl. Com. 188.