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leuce of the assault before lie turns upon his assailant; and thatnot fictitiously, or in order to watch his opportunity, but froma real and affectionate regard fyr preserving the life of hisbrother. And though it inay be cowardice, in time of warbetween two indep 1 ndent nations, to flee from an enemy; yet,between two fellow-subjects, the law countenances no such pointof honour : because the king and his courts are the vindices inju-riarmu, and will give to the party wronged all the satisfaction hedeserves. In this the civil law also agrees, or perhaps goes ratherfarther; “ qui cum aliter tueri ,e non possunt, damni culpam de-derint, innoxii sunt,” Tin : party assaulted must therefore ilee asiar as lie conveniently can, either by reason of some wall, ditch,or other impediment; or as far as the fierceness of the assault willpermit him ; for it may be so fierce as not to allow him to yielda step, with manifest danger of his life, or enormous bodily- harm ;and then in his defence lie may kill his assailant instantly. And,as the manner of the defence, so is also the time to be considered :lor if the person assaulted does not fall upon the agsressor till theaffray is ovev, or when he is running away, this is revenge and notdefence. Neither, under the colour of self-defence, will the lawpermit a man to screen himself from the guilt of deliberate murder :for if two persons, A and B, agree to Tight a duel, and A gives thefirst onset, and B retreats as far as he safely can, and then kills A,this is murder ; because of the previous malice and concerted de-sign. But if A upon a sudden quarrel assaults B first, and, uponB’s returning the assault, A really and bona fide flies; and, beingdriven to the wall, turns again upon B and kills him ; this may bese defendendo, according to some; though others have thoughtthis opinion too favourable: inasmuch as the necessity, to whichhe is at last reduced, originally arose from his own fault. Underthis excuse of self-defence, the principal civil and natural relationsare comprehended: therefore, master and servant, parent andchild, husband ami wife, killing an assailant in lilt; necessary-defence of each other respectively, are excused; the act ofthe relation assisting being construed the same as the act ofthe party himself. Tnere is one species of homicide se defendendo,where the party -.lain is equally innocent as he who occasions hisdeath ; and yet this homicide is also excusable from the great uni-versal principle of self-preservation, which prompts every man tosave his own life preferably to that of another, where one of themmust inevitably perish. As, among others, in that case mentionedby Lord Bacon , where two persons, being shipwrecked, and get-ting on the same plank, but finding it not able to save them both,one of them thrusts the other from it, whereby he is dro-.vned.He who thus preserves his own life, at - the cspencc of anotherman’s, is excusable through unavoidable necessity, and the prin-ciple of self-defence ; since their both remaining on the same weakplank is a mutual, though innocent, attempt upon, and endanger-ing of, each other’s life. Let us next take a view of the circum-stances wherein those two sjjecies of homicide, by misadventureand self-defence, agree; and those are in their blame and punish-ment. For the law sets so high a value upon the life of a man,that it always intends some misbehaviour in the person who takesit away, unless by the command or express permission of the law.In the case of misadventure, it presumes negligence, or at least awant of sufficient caution in him who was so unfortunate as to com-mit it; who therefore is not altogether faultless. And as to the ne-cessity which excuses a man who kills another se defendendo,LordBacon entitles it necessitas culpabiiis, and thereby distinguishes itfrom the former necessity of killing a thief or a malefactor. Forthe law intends that the quarrel or assault arose from some un-known wrong, or some provocation, either in word or deed: andsince in quarrels both parties may be, and usually are, in somefault, and it scarce can be tried who was originally in the wrong:the law will not hold the survivor entirely guiltless. But it isclear, in the other case, that where I kill a thief who breaks intomy house, the original default can never be upon my side. Thelaw besides may have a farther view, to make the crime of homi-cide more odious, and to caution men how they venture to killanother upon their own private judgement ; by ordaining, that liewho slays his neighbour, without an express warrant from the lawso to do, shall in no case he absolutely free from guilt. Nor isthe Jaw of England singular in this respect. Even the slaughterof enemies required a solemn purgation among the Jews ; whichimplies, that the death of a man, however it happens, will leave

some stain behind it. And the Mosaical law appointed certaincities of refuge for him “ who killed his neighbour unawares; asif a man goeth into the wood with his neighbour to hew wood, andhis hand feteheth a stroke with the ax to cut down a tree, andtiie head slippeth from the helve, and ligbteth upon his neighbourthat he die, he shall flee into one of those cities and live.” But itseems he was not held wholly blameless, any more than in theEnglish law ; since the avenger of blood might slay him before hereadied his asylum, or if lie afterwards stirred out of it till thedeath of the high priest. In the imperial law likewise casual ho-micide was excused by the indulgence of the emperor signed withhis own sign-manual adnotatione principis ; otherwise, the deathof a man, however committed, was in some degree punishable.Anions the Greeks, homicide by misfortune was expiated by vo-luntary banishment for a year. In Saxony a fine is paid to thekindred of the slain ; which also, among the western Goths , waslittle inferior to that of voluntary homicide ; and in France ,(under the old government,) no person was absolved in cases ofthis nature, without a largess to the poor, and the charge of cer-tain masses for the soul of the party killed. The penalty in-dicted by the English law is said by Sir Edward Coke to havebeen anciently no less than death ; which, however, is with reasondenied l>v later and more accurate writers. It seems rather tohave consisted in a forfeiture, some say o f all the goods and chat-tels, others of only a part of them, by way of fine or weregild:which was probably disposed of, as in France , in pious uses, ac-cording to the humane superstition of the times for the benefit ofhissoui who was thus suddenly sent to his account with all his im-p< rfections on his head. But that reason having long ceased, andthe penalty (especially if a total forfeiture) growing more severethan was intended, in proportion as personal property has becomemore considerable, the delinquent lias now, and has bad, as earlyas tlie English records will reach, a pardon and writ of restitutionof his goods as a matter of course and right, only paying for su-ing out the same. And, indeed, to prevent this expence, in caseswhere the death lias notoriously happened by misadventure or inself-defence, the judges usually permit (if not direct) a generalverdict of acquittal.

II. Homicide, Felonious, is an act of a very different nature-from the former, being the killing ef a human creature, of any ageor sex, without justification or excuse. This is either manslaughteror murder. Manslaughter is homicide against the life of another,either with or without malice; that which is without malice iscalled manslaughter, or sometimes chance-medley, l>y which isunderstood such killing as happens either on a sudden quarrel, orin the commission of an unlawful act, without any deliberate in-tention of doing any mischief at all. 3 Inst. 5(i. Hence it fol-lows, that there can lie no accessaries to this offence before thefact, because i must lie done without premeditation ; but theremay be accessaries after the fact. Id. The only difference be-tween murder and manslaughter, is, that murder is upon maliceaforethought, and manslaughter upon a sudden occasion, as if twomeet together, and striving for the wall the one kills the other,this is manslaughter and felony. And so it is if they had, on thatsudden occasion, gone into the field and fought, and the one hadkilled the other, this had been but manslaughter and no murder,because all that followed was but a continuance of the first sud-den occasion, and the blood was never cooled till the blow wasgiven. 3 Inst. 53. Murder is the highest crime against the law ofnature that a man is capable of committing. Murder is when aman of sound memory, and at the age of discretion, unlawfullykills another person under tire king’s peace with malice afore-thought, either expressed by the party, or implied by the law, soas tiie party wounded or hurt die of the wound or hurt within ayear and a day. 3 Inst. 47. And the whole day on which thehurt was done, shall be reckoned the first. 1 I law. 79. By ma-lice expressed, is meant a deliberate intention of doing any bodilyharm to another, whereunto by law a person is not authorized.And the evidences of such malice must arise from external circum-stances discovering that inward intention ; as lying in wait, me-nacings antecedent, former grudges, deliberate rnmpassings, and-the like, which are various, according to the variety of circum-stances. 1 II. II. 451. Malice implied, is where a person volun-tarily kills another, without any provocation ; for in this case thelaw presumes it to be malicious, and that be is a public enemy of

mankind.