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death, and while the party is under actual compulsion, (d) there seems to be no reason why homicide may not also be mitigated upon the like consideration of human infirmity: though, in case the party might have recourse to the law for his protection from the threats used against him, his fears will certainly furnish no excuse for committing the murder. (e)

It should further be observed that, as the excuse of self-defence is founded on necessity, it can, in no case, extend beyond the actual continuance of that necessity by which alone it is warranted: (ƒ) for if a person assaulted does not fall upon the aggressor till the affray is over, or when he is running away, this is revenge, and not defence. (g)

Acts of unavoidable necessity, or

permitted by

law. Execution of malefactors.

Officers kill

assault and

resist them.

SECT. III.

Of Justifiable Homicide.

Ir has been already stated that justifiable homicide is of several
kinds, as it may be occasioned by the performance of acts of
law. (h)
unavoidable necessity, or by acts done by the permission of the

Amongst the acts of unavoidable necessity may be classed the execution of malefactors, by the person whose office obliges him, in the performance of public justice, to put those to death who have forfeited their lives by the laws and verdict of their country. These are acts of necessity, and even of civil duty; and, therefore, not only justifiable, but commendable, where the law requires them.(i) But the law must require them, otherwise, they are not justifiable; and, therefore, wantonly to kill the greatest of malefactors would be murder: and, we have seen that all acts of official duty should, in the nature of their execution, be conformable to the judgment by which they are directed. (k)

Amongst the acts done by the permission of the law, for the ading those who vancement of public justice, may be reckoned those of the officer, who, in the execution of his office, either in a civil or criminal case, kills a person who assaults and resists him. The resistance will justify the officer in proceeding to the last extremity. So that in all cases, whether civil or criminal, where persons having authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, they may repel force with

(d) 1 East. P. C. c. 2. s. 15. p. 70. and the authorities there cited.

(e) 1 East. P. C. c. 5. s. 61. p. 294. Lord Hale says that in the most extreme case, where there could be no recourse to law, the person assailed ought rather to die himself than kill an innocent person.

(f) 1 East. P. C. c. 5. s. 60. p. 293. (g) 4 Blac. Com. 293. (h) Ante, 538. (i) Fost. 267. 1 Hale 496, 502. 4 Blac. Com. 178.

(k) Ante, 460, and see 1 Hale 501. 2 Hale 411.

force, and need not give back; and if the party making resistance is unavoidably killed in the struggle, this homicide is justifiable. (7) A rule founded in reason and public utility; for few men would quietly submit to an arrest, if, in every case of resistance, the party empowered to arrest were obliged to desist, and leave the business undone and a case, in which the officer was holden guilty of manslaughter, because he had not first given back, as far as he could, before he killed the party who had escaped out of custody, in execution for a debt, and resisted being retaken, (m) seems to stand alone, and has been mentioned with disapprobation. (n) With respect to offenders against the revenue laws, it is enacted, that, if any person or persons liable to be arrested and detained under the provisions of any act relating to the revenue of customs, shall not be detained at the time of committing the offence for which he or they is or are so liable, or, after detention, shall make his or their escape, it shall and may be lawful for any officer of the army, navy, or marines, being duly authorized and on full pay, or any officer of customs or excise, or any other person acting in his or their aid or assistance, or duly employed under such officer, to stop, arrest, and detain such person so liable to detention as aforesaid, at any time afterwards, and to carry him before two justices of the peace, to be dealt with as if detained at the time of committing the said offence (0)

But where the party does not resist, but merely flies to avoid Officers killthe arrest, the conduct of the officer should be cautiously regu- fly from aring those who lated by the nature of the proceeding. For in civil cases, and also rest. in the case of a breach of the peace, or any other misdemeanor, short of felony, if the officer should pursue a defendant flying in order to avoid an arrest, and should kill him in the pursuit, it will be murder or manslaughter, according to the peculiar circumstances by which such homicide may have been attended. (p) But if a felony be committed, and the felon fly from justice, or a dangerous wound be given, it is the duty of every man to use his best endeavours for preventing an escape; and if in the pursuit the party flying be killed, where he cannot be otherwise overtaken, this will be deemed justifiable homicide. (q) This rule is not confined to those who are present, so as to have ocular proof of the fact, or to those who first come to the knowledge of it: for if in these cases fresh suit be made, and a fortiori if hue and cry be levied, all who join in aid of those who began the pursuit are under the same protection of the law. And the same rule holds, if a felon, after arrest, break away as he is carrying to gaol, and his pursuers cannot retake without killing him. (r)

Where a person is indicted for a felony, and will not suffer him

(7) 1 Hale 494. 1 Hawk. P. C. c. 28. s. 17, 18. Fost. 270. 4 Blac. Com. 179. 1 East. P. C. c. 5. s. 74. p.

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(0) 6 Geo. 4. c. 108. s. 51. And more particular provisions are contained in the act, as to the arrest and

detention of persons committing of-
fences therein enumerated. And see
ante, Book II. Chap. x. p. 117, et

sequ.

(p) Ante, 449, 457, 508.

(q) 1 Hale 489, 490. 1 Hawk. P. C. c. 28. s. 11. Fost. 271. 4 Blac. Com.

179.

(r) Id. ibid. 1 East. P. C. c. 5. s. 67. p. 298.

Officers dis

persing a mob

in case of a riot, &c.

Gaolers and their assistants killing prisoners.

Malefactores in parcis.

self to be arrested by an officer, having a warrant for that purpose, the officer may lawfully kill him if he cannot otherwise be taken; though such person be innocent, and though in truth no felony have been committed. (s) But it seems that this must be understood only of arrests by officers, and does not extend to arrests by private persons of their own authority.(t)

In the case of a riot or rebellious assembly, the peace officers and their assistants, endeavouring to disperse the mob, are justified, both at common law and by the riot act, in proceeding to the last extremity, in case the riot cannot otherwise be suppressed. (u) And it has been said, that perhaps the killing of dangerous rioters may be justified by any private persons who cannot otherwise suppress them, or defend themselves from them, inasmuch as every private person seems to be authorized by the law to arm himself for the preservation of the peace. (w)

Gaolers and their officers are under the same special protection as other ministers of justice; and, therefore, if in the necessary discharge of their duty, they meet with resistance, whether from prisoners in civil or criminal suits, or from others, in behalf of such prisoners, they are not obliged to retreat as far as they can with safety, but may freely, and without retreating, repel force by force; and if the party so resisting happen to be killed, this, on the part of the gaoler, or his officer, or any person coming in aid of him, will be justifiable homicide.(x)

If a forester, parker, or warrener, find any trespassers wandering within his liberty, intending to do damage therein, who will not yield, after hue and cry made to stand unto the peace, but do continue their malice, and disobeying the king's peace, do flee or defend themselves with force and arms, if such forester, parker, or warrener, or their assistants, kill such offenders, either in arresting or taking them, they shall not be troubled for the same, nor suffer any punishment. (y) But they cannot kill persons who come to take only decayed wood.(z) It is also enacted, that owners of deer in any enclosed land, or any persons under them, may resist offenders, in like manner as in ancient parks. (a) And by another statute, lords of manors, or any others authorized by

(s) 1 Hawk. P. C. c. 28. s. 12.

(t) 2 Hale 84. Sed vid. 1 Hale 489, 490. and I East. P. C. c. 5. s. 68. p. 300, 301. where it is said, that the fact of the indictment found is a good cause of arrest by private persons, if it may be made without the death of the felon: and that if the fact of his guilt be necessary for their complete justification, it is conceived that the bill of indictment found by the grand jury would, for that purpose, be prima facie evidence of the fact, till the contrary be proved.

(u) 1 Hale 53, 494, 495. MS. Tracy 36. cited 1 East. P. C. c. 5. s. 71. p. 304. Riot act, 1 Geo. 1. st. 2. c. 5. where persons continue together an hour after proclamation. And see ante, Book II. Chap. xxv. Of Riots,

&c. p. 247, 266.

(w) 1 Hawk. P. C. c. 28. s. 14. and see Fost. 272. Poph. 121. It was so resolved by all the Judges in Easter Term, 39 Eliz. though they thought it more discreet for every one in such a case to attend and assist the king's officers in preserving the peace. And, certainly, if private persons interfere to suppress a riot, they must give notice of their intention.

(x) Fost. 321. 1 Hale 481, 496. (y) 21 Ed. 1. stat. 2.

(2) 1 MS. Sum. 145, 175. Sum. 37, 46. cited 1 East. P. C. c. 5. s. 31. p. 256. Palm. 546. 2 Roll. R. 120. And there is a special warning in the statute, that the foresters act not from malice or malicious pretence, s. 2.

(a) 3 and 4 W. & M. c. 10. s. 5.

them as gamekeepers, may resist offenders in the night, within their respective manors or royalties, in the same manner and with equal indemnity as if the fact had been committed in any ancient chase.(b)

Sir William Hawkesworth being weary of life, and willing to be rid of it by the hand of another, having first blamed his keeper for suffering his deer to be destroyed, and commanded him to execute the law, came himself into his park at night as if with intent to steal the deer; and being questioned by the keeper, who knew him not, and refusing to stand or answer, he was shot by the keeper. This was decided to be excusable homicide by the statute De malefactoribus in parcis. (c)

tion of any

atrocious

crime.

A man may repel force by force in defence of his person, habi- Homicide in tation, or property, against one who manifestly intends and en- the prevendeavours, by violence or surprise, to commit a known felony upon forcible and either. In these cases he is not obliged to retreat, but may pursue his adversary till he finds himself out of danger; and if, in a conflict between them, he happens to kill, such killing is justifiable. (d) But it has been holden, that this rule does not apply to any crime unaccompanied with force, as picking of pockets. (e) It seems, therefore, that the intent to murder, ravish, or commit other felonies attended with force or surprise, should be apparent, and not be left in doubt: so that if A. make an attack upon B., it must plainly appear by the circumstances of the case (as the manner of the assault, the weapon, &c.) that the life of B. is in imminent danger; otherwise, his killing the assailant will not be justifiable self-defence. (f) And the rule clearly extends only to cases of felony; for if one come to beat another, or to take his goods merely as a trespasser, though the owner may justify the beating of him, so far as to make him desist, yet if he kill him, it is manslaughter.(g) But if a house be broken open, though in the daytime, with a felonious intent, it will be within the rule.(h)

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A statute made (i) in affirmance of the common law, after recit- 24 Hen. 8. ing, that it had been doubted whether, if any person should c. 5. Persons attempt feloniously to rob or murder any persons, in or near any

(b) 4 and 5 W. & M. c. 23. s. 4. It has been doubted whether an assistant to a legal gamekeeper could justify seizing a fishing net, under this statute, s. 5. and whether the authority were not personal. Rex v. Annesley and Redding, 9 St. Tri. 329, 330. But it is said, that, without considering that question, it is sufficient to observe, that the case did not turn upon this clause of the act, which has express reference to the powers given by the stat. 21 Ed. 1. and that statute extends in terms to assistants. 1 East. P. C. c. 5. s. 31. p. 256.

(c) 1 Hale 40.

(d) Fost. 273. Kel. 128, 129. 1 Hale 445, 481, 484. et sequ. 1 Hawk. P. C. c. 28. s. 21, 24.

(e) 1 Hale 488. 4 Blac. Com. 180.

But if one pick my pocket, and I can-
not otherwise take him than by kill-
ing him, this falls under the general
rule concerning the arresting of felons.
1 East. P. C. c. 5. s. 45. p. 273.
(f) 1 Hale 484.

(g) 1 Hale 485, 486. 1 Hawk. P. C.
c. 28. s. 23. Kel. 132. 1 East. P. C.
c. 5. s. 44. p. 272.

(h) 1 East. P. C. c. 5. s. 44.
p. 273.
In 4 Blac. Com. 180. it is said, that
the rule reaches not to the breaking
open of any house in the day-time,
unless it carries with it an attempt of
robbery also. But it will apply where
the breaking is such as imports an
apparent robbery, or an intention or
attempt of robbery. 1 Hale 488.
(i) 24 Hen. 8. c. 5.

killing those who are at

tempting to rob or murder, burglary, are

or commit

not to suffer

any forfeiture

of goods, &c.

but to be fully acquitted.

Grounds of

felonious de

sign.

Levet's case.

66

common highway, cart-way, horse-way, or footway, or in their mansions, messuages, or dwelling places, or attempt to break any dwelling-house in the night-time, and should happen in such felonious intent to be slain by those whom they should so attempt to rob or murder, or by any person being in their dwelling-house, attempted to be broken open, the person so happening to slay the person so attempting to commit murder or burglary, should forfeit goods and chattels, enacts "that if any person or persons be in"dicted or appealed of or for the death of any such evil-disposed person or persons attempting to murder, rob, or burglarily to "break mansion-houses, as is abovesaid, the person or persons so "indicted or appealed thereof and of the same by verdict so found "and tried shall not forfeit or lose any lands, tenements, goods, "or chattels, for the death of any such evil-disposed person in "such manner slain, but shall be thereof and for the same fully "acquitted and discharged," in like manner as if lawfully acquitted of the death of such person. But though the statute only mentions certain cases, it must not be taken to imply an exclusion of any other instances of justifiable homicide which stand upon the same grounds of reason and justice. So that the killing of one who attempts the wilful burning of a house is free from forfeiture without the aid of this statute.(k)

Important considerations will arise in cases of this kind, as to suspicion of a the grounds which the party killing had for supposing that the person slain had a felonious design against him; more especially where it afterwards appears that no such design existed. One Levet was indicted for killing Frances Freeman, under the following circumstances. Levet being in bed and asleep, his servant who had procured Frances Freeman to help her about the work of the house, and went to the door about twelve o'clock at night to let her out, conceived that she heard thieves about to break into the house: upon which she ran to him, and told him of what she apprehended. Levet arose immediately, took a drawn sword, and, with his wife, went down stairs: when the servant, fearing that her master and mistress should see Frances Freeman, hid her in the buttery. Levet with his sword_searched the entry for thieves, when his wife, spying Frances Freeman in the buttery, and not knowing her, conceived her to be a thief, and cried out to her husband in great fear, "Here they be that would undo us:" when Levet, not knowing that it was Frances Freeman in the buttery, hastily entered with his drawn sword, and being in the dark, and thrusting before him with his sword, thrust Frances under the left breast and gave her a mortal wound, of which she instantly died. (1) This was ruled to be misadventure: but a great judge appears to have thought the decision too lenient, and that it would have been better ruled manslaughter; due circumspection not having been used. (m) Upon this opinion, however, some observations have been made; and it has been ably argued, upon the peculiar facts and circumstances of the transaction, that

(k) 1 Hale 488. 1 East. P. C. c. 5.

s. 44. p. 272.

(1) Levet's case, Cro. Car. 538. 1

Hale 42, 474. Jones (W.) 429.
(m) Fost. 299.

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