[And the Mosaical law, appointed certain cities of refuge for him who killed his neighbour unawares: "as if a man goeth into the wood with his neighbour to hew wood, " and his hand fetches a stroke with his axe to cut down a

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tree, and the head slippeth from the helve, and lighteth upon his neighbour that he die, he shall flee unto one of "these cities and live" (q). But it seems he was not held wholly blameless, any more than in the English law: since the avenger of blood might slay him before he reached his asylum; or if he afterwards stirred out of it, till the death of the high priest. In the Imperial law, likewise, casual homicide was excused by the indulgence of the emperor, signed with his own sign-manual, "adnotatione principis ;" otherwise the death of a man, however committed, was in some degree punishable (r). Among the Greeks, homicide by misfortune was expiated by voluntary banishment for a year (s). In Saxony, a fine was paid to the kindred of the slain: which also, among the Western Goths, was little inferior to that of voluntary homicide (t);] and formerly in France, no person was ever absolved in cases of this nature, [without a largess to the poor, and the charge of certain masses for the soul of the party killed (u).

The penalty for an excusable homicide inflicted by our laws, is said by Sir Edward Coke to have been antiently no less than death (x); which, however, is with reason denied by later and more accurate writers (y). It seems rather to have consisted in a forfeiture; some say

(q) Numb. xxxv. and Deut. xix. (r) Cod. 9, 16, 5.

(s) Plato de Leg. 1. 9. To this expiation by banishment, the spirit of Patroclus in Homer may be thought to allude, when he reminds Achilles, in the twenty-third Iliad, that, when a child, he was obliged to flee his country for casually kill

ing his playfellow,
ἐθέλων.”

of all

(t) Stiern. de Jure Goth. 1. 3,

c. 4.

(u) 4 Bl. Com. 188, cites De Morney on the Digest.

(r) 2 Inst. 148, 315.

(y) 1 Hale, P. C. 425; Hawk. P. C. b. 1, c. 29, s. 21; Fost. 282.

[the goods and chattels, others only of part of them; by way of fine or weregild (2). Which was probably disposed of, (as in France,) in pios usus, according to the humane superstition of the times, for the benefit of his soul who was suddenly sent to his account, with all his imperfections on his head. But that reason having long ceased, and the penalty, especially if a total forfeiture, growing more severe than was intended, in proportion as personal property became more considerable, the delinquent had, as early as our records will reach, a pardon and writ of restitution of his goods as a matter of course and right, only paying for suing out the same (a).] And in later times, to prevent this expense, in cases where the death notoriously happened by misadventure or in self-defence, the judges usually directed a general verdict of acquittal (b). Afterwards, by statute 9 Geo. IV. c. 31, s. 10, it was provided, that no punishment or forfeiture, should be thenceforth incurred by any person who should kill another by misfortune or in his own defence, or in any other manner without felony; and though this provision has been recently repealed, a clause to the same effect is inserted in 24 & 25 Vict. c. 100 (c), the statute by which offences against the person are now regulated. So that all practical distinction between justifiable and excusable homicide is now wholly done away.

3. [Felonious homicide is an act of a very different nature from the former; being the killing of a human creature, of any age or sex, without justification or excuse. This may be done either by killing one's self, or another

man.

Self-murder, the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to

[avoid those ills which they had not the fortitude to endure,

though the attempting it seems to be countenanced by the civil law (e), yet was punished, by the Athenian law, with cutting off the hand which did the desperate deed (ƒ). The law of England, also, wisely and religiously considers, that no man hath a power to destroy life, but by commission from God, the author of it. And as the suicide is guilty of a double offence: one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the sovereign, who hath an interest in the preservation of all his subjects: our law has ranked this among the highest crimes,-making it a peculiar species of felony, a felony committed on one's self. And this admits of accessories before the fact, as well as other felonies; for if one persuades another to kill himself, and he does so, the adviser is guilty of murder (g). A felo de se, therefore, is he that deliberately puts an end to his own existence;] and he also is so considered, who, maliciously attempting to kill another, occasions his own death; as where a man shoots at another, and the gun bursts and kills himself (h). But if a man is killed at his own request by the hand of another, the former is not deemed in law a felo de se, though the latter is a murderer (i). In homicide committed on one's self, [the party must be of years of discre

(e) "Si quis impatientiâ doloris, aut tædio vitæ, aut morbo, aut furore, aut pudore, mori maluit, non animadvertatur in eum."-Ff. 49, 16, 6.

(f) Pott. Antiq. b. 1, c. 26.

(g) 4 Bl. Com. p. 189; Keylw. 136. Notwithstanding this opinion of Blackstone, it was afterwards adjudged that such accessory could not be tried for murder, as his principal could not be tried. (See R. v. Russell, 1 Moo. C. C. R. 356; R. v. Laddington, 9 C. & P. 79.) But by recent statutes, and now by 24 & 25 Vict. c. 94, s. 2, an accessory

either before or after the fact-as stated sup. p. 128, n. (1)—is made liable to be tried and convicted whether the principal felon shall or shall not be amenable to justice. It may be observed here, that if two persons mutually agree to commit suicide together, and accordingly take poison or the like together, and one only dies, the survivor is guilty of murder. (R. v. Dyson, R. & R. 523; R. v. Alison, 8 C. & P. 418.)

(h) Hawk. P. C. b. 1, c. 27, s. 4. (i) Ibid. s. 6.

[tion, and in his senses, else it is no crime. But this excuse ought not to be strained to that length to which our coroners' juries are apt to carry it, viz. that the very act of suicide is an evidence of insanity: as if every man, who acts contrary to reason, had no reason at all: for the same argument would prove every other criminal non com- · pos, as well as the self-murderer. The law very rationally judges that every melancholy or hypochondriac fit, does not deprive a man of the capacity of discerning right from wrong;] or rather, (to express it more correctly,) prevent his having a sufficient degree of reason to know that his act is wrong; which is necessary, as was held in Macnaughten's case, to form a legal excuse (j). [And therefore if a real lunatic kills himself in a lucid interval, he is a felo de se as much as another man (k).

But now the question follows, what punishment can human laws inflict, on one who has withdrawn himself from their reach? They can only act upon what he has left behind him—his reputation and fortune;] and this the

(j) Vide sup. p. 112, n. (z).

(k) 1 Hale, P. C. 412. The views of our most eminent writers upon criminal law agree, in this respect, with Blackstone. "It is not 66 every melancholy or hypochon"driac distemper that denominates 66 a man non compos," (says Sir M. Hale, ubi sup.,) "for there are "few who commit this offence (of

suicide) but are under such infir"mities; but it must be such an "alienation of mind that renders "them to be madmen or frantic, or "destitute of reason." And Hawkins, (b. 1, c. 27, s. 2,) lays down a similar doctrine; and reprobates the notion, which he says had unaccountably prevailed of late, that every one who kills himself must be non compos. It is to be observed, however, that there are many cases VOL. IV.

::

of suicide, in which no motive for the act appears, or can be imagined, such as can be supposed to operate upon a mind free from morbid delusion. In these circumstances the practice of juries to return a verdict of insanity, without further evidence of unsoundness of mind, does not seem fairly to fall under the censure in the text. In other kinds of murder, also, this apparent want of rational motive is of frequent occurrence; and ought, it would seem, to lead to the same conclusion. But the danger of acquittal on this ground, without further proof of insanity, is too obvious to require remark; and should always deter a jury from a verdict of that description, unless the circumstances be very strong and peculiar.

L

law of England formerly did with the greatest severity. It acted [on the former, by an ignominious burial in the highway, with a stake driven through his body,] and without Christian rites of sepulture; [on the latter, by a forfeiture of all his goods and chattels to the Crown, hoping that his care for either his own reputation or the welfare of his family, would be some motive to restrain him from so desperate and wicked an act.] But the only consequences now are, the forfeiture and the deprivation of Christian rites. For by 4 Geo. IV. c. 52, s. 1, it is provided, that it shall not be lawful for the coroner to direct the interment of a felo de se in any public highway; but he shall direct him to be interred,-without any stake being driven into his body,-in the churchyard or other burying ground; within twenty-four hours after the inquisition, and between nine and twelve at night: it being declared, however, that this shall not authorize the rites of Christian burial. As to the forfeiture it is observable that it has relation [to the time of the act done in the felon's lifetime, which was the cause of his death. As if husband and wife be possessed jointly of a term of years in land, and the husband drowns himself, the land shall be forfeited to the Crown, and the wife shall not have the survivorship. For by the act of casting himself into the water he forfeits the term, which gives a title to the Crown prior to the wife's title by survivorship; which could not accrue till the instant of her husband's death (1). And though it must be owned that the letter of the law herein borders a little upon severity, yet it is some alleviation that the power of mitigation is left in the breast of the sovereign; who upon this, (as on all other occasions,) is reminded by the oath of his office, to execute judgment in mercy.

The other species of criminal homicide is, that of killing another man. But in this there are also degrees of guilt, which divide the offence into manslaughter and murder. The difference between which, may be partly collected from what has been incidentally mentioned in the preceding (1) Finch, L. 216.