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mankind. 5 11. H. 455. In general : qwretbre not such killingmischief may be called malice; and the r i, v e aga j ns t the

only as proceeds from premeditated hatted o j^Jinpaniedperson killed, but also in many other eases,.such■ ■ e)y X:ked,''dh circumstances which shew the heart to •I conse-

»s judged to be of malice prepense, or 4 *“f h ®Xr, t stall hequently murder. 2 Haw. 80. If a man kills anoinei, >intended prima facie that he did it inalicioufly, G ( provo -

the contrary appear, by shewing that he did .1 on a smldcn p uccation or the \L. 1 Flaw. 82.° When the lawterm malice aforethought, as descriptive ot the cnw j. h

must not be understood in that narrow restrained sen*, U«h'the modern use of the word malice is apt to lead > > ^ 1 p,

ot malevolence to particulars; for the law by the •

this instance, means, that the feet has been alterdc ^^suc,circumstances, as are the ordinary symptoms of f j,- ost>

regardless of social duty, and fatally bent upon »’«* t t25b. The law so far abhors all duelling m coleI « t '

only the principal who actually kills the othei, hut Polden

are guilty of murder, whether they fought or not, and d - j ntivaL tlie seconds of the person killed are also equa )< g .. ■\respect to that countenance which they give to then pin I nthe execution of their purpose, by accompanying '

and being ready to bear a part with them. 5 Haw. ■ .

seems agreed, that no breacli of a man’s word or prom » ’ . ‘

pass either to land or goods, no affront by bare words oi „However false or malicious it may be, and aggravate! vmost provoking circumstances, will excuse him tiom belt 0 g yof murder whS is so far transported thereby, as immediately toattack the person who offends, in such a mannei as nvfestly endangers his life, without giving him time to put him-self upon liis guard, if he kills him in pursuance of such a -sault, whether the person slain did at all fight in Ins defence oi

111. Homicide, Justifiable, is of different kinds, ^

is owing to some unavoidable necessity, without any wi ,tion, or desire, and without any inadvertence or negligence, inparty killing, and therefore without any shadow ot blame , >

instance, by virtue of such an office as obliges one, in the e.

tion of public justice, to put a malefactor to death, who ia■felted his life by the laws and verdict of his country. 1 ‘

act of necessity, and even of civil duty -. and therefore 1)0 ° Hjustifiable, but commendable, where the law requires it.law must require it, otherwise it is not justifiable: therefore \tonly to kill the greatest of malefactors, a felon, or atraitoi, •tainted or outlawed, deliberately, uncompelled, and extra]u( l-ciallv, is murder. And farther, if judgement of death be given bya judge not authoiized by lawful commission, and execution isdone accordingly, the judge is guilty of murder. Also suchjudgement, when legal, must be executed by the proper officer, oihis appointed deputy ; for no one else is required by law to do it,which requisition it is that justifies the homicide. If anotner per-son doth it of his own head, it is held to be murder: even thoughit be the judge himself. If must farther be executed, servato jui isordine ; it must pursue the sentence of the court. If an officerbeheads one who is adjudged to be hanged, or vice versa, it is mur-der: for he is merely ministerial, and therefore only justified wnenbe acts under the authority and compulsion of the law. Hut, it asheriff changes one kind of punishment for another, he then actsby his own authority, which extends not to the commission ot Ho-micide : and besides, , this licence might occasion a very grossabuse of his power. • T.hfi king indeed may remit part ot a sen-tence, as iu the case of treason, all but the beheading: but thisis no change, no introduction of a new punishment; and in thecase of felony, where the judgement is to be hanged, the King (ihas been said) cannot legally order even a peer to be beheaileo.Again : m some cases homicide is justifiable, rather by the per-mission, than bv the. absolute command, of the law: either tor tneadvancement of public justice, which without such indemnifica-tion would never be carried on with proper vigour ; or, m suchinstances where it is committed for the prevention of some atro-cious crime, which cannot otherwise be avoided, ii- Homicides,committed for the advancement of public justice, are, 1. Wherean officer, in the execution of his office, either in a civil or cri-minal case, kills a person that assaults and resists him. 2. It anofficer, or any private person, attempts to take a man charged ,witn

felony, and iv resisted ; and, in the endeavour to take him, killshim. 3. In case of a riot or rebellious assembly, the officers en-deavouring to disperse the mob are justifiable in kilimg them, botli-at common law and by the riot-act, I Geo. I. c. 5. 4. Where tht

prisoners in a gaol, or going to a gaol, assaultthe gaoler or officer,and he in his defence kills any ot them,it is justifiable, for the sakeof preventing an escape. 5. If trespassers in forests, parks, chases,or warrens, will not surrender themselves to the keepers, theymay be slain ; by virtue ofthe statute 21 Edward I. stal 2, de ma-lefactoribus in pads, and 3 & 4 W. & M. c. 10. But, in allthese cases, there must be an apparent necessity on the officer’sside; viz. that the party could not be arrested or apprehend-ed, the riot could not be suppressed, the prisoners could not bekept in hold, the deer-stealers could not but escape, unless suchhomicide were committed: otherwise without sucli absolute ne-cessity, it is not justifiable, iii. In the next place, such homi-cide as is committed for the prevention of any forcible and atro-cious crime, is justifiable by the law of nature; and also by thelaw of England, as it stood so early as the time of Bracton, andas it is since declared by stat. 2411. VIII. c. 5. If any personattempts a robbery or murder of another, or attempts to breakopen a house in the night-time (which extends also to an attemptto burn it), and shall be killed in such attempt, the slayer shall beacquitted and discharged. This reaches not to any crime unac-companied with force, as picking of pockets ; or to the breakingopen of any house in the day-time, unless it carries with an attemptof robbery’also. So the Jewish law, which punished no theft withdeath, makes homicide only justifiable in case of nocturnal house-breaking : “ If a thief lie found breaking up, and he be smittenthat he die, no blood shall be shed for him ; but if the sunbe risen upon him, tiiere shall be blood shed for him, for heshould have made full restitution.” At Athens, if any theftwas committed during the night, it was lawful to kill the cri-minal, if taken in the fact: and, by the lloman law of the X! 1 ta-bles, a thief might be slain by night with impunity ; or even bvday, if he armed himself with any dangerous weapon : whichamounts very nearly to the same as is permitted by our constitu-tion. The Roman law also justifies homicide, when committed indefence of the chastity either of one’s self or relation ; anil so also-according to Selden, stood the law in the Jewish republic. TheEnglish law likewise justifies a woman killing one who attempts toravish her : and so too the husband or father may be justified inkilling a man, who attempts a rape upon his wife or daughter ; hutnot if he takes them in adultery by consent; for the one is for-cible and felonious, but not the other. And there is no doubt butthe forcibly attempting a crime, of a still more detestable nature,may be equally resisted by the death of the unnatural aggressor.For the one uniform principle that runs through our own, and allother laws, seems to be this : that where a crime, in itself capital,is endeavoured to be committed by force, it is lawful to repetthat force by the death of the party attempting. But we must notcarry this doctrine to the same length that Mr. Locke does; whoholds, “ that all manner of force without right upon a man’s per-son, puts him in a state of war with the aggressor; and, of con-sequence, that being in such a state of war, he may lawfully killhim that puts him under this unnatural restraint.” However justthis conclusion may be in a st: *.- of uncivilized nature, yet thelaw of England, like that of every other 'veil regulated commu-nity, is too tender of the public peace, too careful of the life ofthe subject, to adopt so contentious a system ; nor will it sufferwith impunity any crime to be prevented by death, unless thesame, if committed, would also be punished by death. Ln theseinstances of justifiable homicide, it may be observed, that theslayer is in no kind of fault whatsoever, not even in the minutestdegree : and is therefore to be totally acquitted and .discharged,with commendation rather than blame. But that is not quite thecase in excusable homicide, the very name whereof imports somefault, some error, or omission ; so trivial, however, that the lawexcuses it from the guilt of felony, though in strictness it judges itdeserving of some little degree of punishment.

HOMILY , [front SfAixof, an assembly,] a sermqn upon somepoint of religion, delivered in a plain manner, so as to be easilyunderstood by the people. The Greek homily, says M. Fleury,signifies a familiar discourse, like the Latin sermo ; and discoursesdelivered in the cluufch were so named, to intimate, that they werenot harangues er matters ostentation and (loutish, like ffiosc of

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