nothing; but the person kild forfeits his goods, tho he were kild before attainder, upon an inquisition either by the coroner, or petit jury finding his flight. 3 E. 3. Coron. 288. 328.

By the statute of 21 E. 1. de malefactoribus in parcis, if a parker, forester, or warrener, find any trespassers wandering in his park, forest, or warren, intending to do damage therein, and they will not yield to the forester after hue and cry made to stand to the king's peace, but fly or defend themselves, whereupon they are kild, the parker, forester, or warrener, or their assistants shall not lose life or limb for the same, but shall enjoy the king's peace, so it be not done upon any former malice or evil will; but to make good such justification by a parker, forester, or warrener, there are these things requisite: 1. It must be a legal forest, park, or warren, or chace, (for a chase includes warren) and not a bare warren, park, &c. in reputation, for if a man inclose a piece of ground, and put deer or conies in it, this makes it not a park or warren without a prescription time out of mind, or the king's charter. 2. If a man have a park within a forest, where he may hunt, and the forester kills the purloin-man, or his servant hunting in the purloin, this doth not excuse the forester from murder or manslaughter, as the circumstances of the case are. Dyer 327. a.

And note, that in all these cases of homicide by necessity, as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony, the matter may be specially presented by the grand inquest, (quod vide 3 E. 3. Coron. 305. 289. and several other places,) or by the coroner's inquest. And thus it was done in Holme's case, 26 Eliz. Crompt. 28. and in the case of a servant of justice Croke, who coming with the judge out of the circuit was assaulted in the highway, and he kild the assailant, and the matter presently specially found by the coroner's inquest, whereby he was discharged by the statute of 24 H. 8. cap. 5. and in these cases upon this special presentment the party shall be presently discharged without being put to plead, but then this acquittal by presentment is no final discharge, for he may be indicted and arraigned again afterwards, if the matter of the former indictment be false; but if in such a case the presentment of the grand inquest or coroner's inquest be simply of [492 murder or manslaughter, and thereupon he is arraigned and tried, and this special matter given in evidence, he shall be acquitted thereupon, for upon these special matters proved in evidence, he is not guilty, for it is no felony, and this acquittal is a perpetual discharge and bar against any other indictment for the same death; therefore this latter way is more advantageous in the conclusion for the party, than a special presentment. Cromp. fol. 28. Holme's case.[19]

[19] Lord Bacon says, "if divers be in danger of drowning, by the casting away of some boat, or barque, and one of them get to some plank, or on the boat's side to keep himself

above water, and another to save his life thrust him from it, whereby he is drowned; this is neither se defendendo, nor by misadventure, but justifiable." Max. Reg. V. Later writers speak of this as homicide se defendendo.

The only case directly involving this doctrine is that of U. S. v. Holmes, C. C. U. S. for Eastern District of Penn., March, 1842—an indictment for manslaughter. The defen. dant was a mariner, and the deceased a passenger in a ship wrecked and abandoned at sea; the crew and passengers embarking in boats, and within twenty-four hours after the abandonment the danger of destruction by tempest being imminent, the prisoner, together with the remaining sailors, proceeded to throw overboard those passengers whose remo val seemed necessary for the common safety, among whom was the deceased. Relief shortly after came; but the evidence conflicted as to whether the boat could have held out in its original crowded state even during that short period. The question, therefore, whether, with no prospect of aid, acting under the circumstances which surrounded the defendant at the time the act was committed, such necessity existed as would justify the homicide, was one of great doubt. But a new principle was introduced into the case by Judge Baldwin, who presided. Holding, that in such an emergency, there was no maritime skill required which would make the presence of a sailor of more value than that of a passenger, he maintained, that in such case, it being the stipulated duty of the sailor to preserve the passenger's life at all hazards, if a necessity arose in which the life of one or the other must be lost, the life of the passenger must be preferred. If, on the other hand, the crew was necessary, in its full force, for the management of the vessel, the first reduction to be made ought to take place from among the passen. gers. But under all circumstances, it was held, the proper method of determining who was to be the first victim out of the particular class, was by ballot. The defendant, under the charge of the court, was convicted. U. S. v. Holmes, Pamphlet, Phila., 1842. Sir William Russell observes, that if the commission of treason may be extenuated by the fear of present death, and while the party is under actual compulsion, (1 East, P. C. 70.) 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. 1 East, P. C. 294. It must 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; 1 East, P. C. 293. 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. 4 Bl. Com. 293. 1 Russ. on Cr. 665. See Foster, 271. 277. 318.

CHAPTER XLI.

CONCERNING THE FORFEITURE OF HIM, THAT KILLS IN HIS OWN DEFENSE, OR PER INFORTUNIUM.

Ir a man kill another by misfortune, yet he shall forfeit his goods in strictness of law, in respect of the great favour the law hath to the life of a man, and to the end that men should use all care, diligence and circumspection in all they do, that no such hurt ensue by their actions.

But if the occision or killing can by no means be attributed to the act of the person, but to the act of him, that is kild, there it seems, tho the instrument of the death is forfeited as a deodand, there follows no forfeiture of the goods of the person: for instance,

If A. shoots at rovers, as he may lawfully do, if B. after the arrow is delivered runs into the place, where the arrow is to fall, of his own accord, and so is kild, this seems to be such an infortunium, that affects not A. with the loss of goods, for it was not his act that

contributed to the death of B. but the wilful or improvident act of B. himself; quære.

If A. assaults B. and B. in his own defense kills A. yet [493] B. forfeits his goods.

If the coroner's inquest find the killing specially se defendendo, yet the court shall arraign him, and try him, whether it were se defendendo, before he shall have his pardon of course. 4 H. 7. 1 § 2.

But if B. having a pitch-fork in his hand, A. assaults B. SO fiercely, that he runs upon the pitch-fork of B., B. offering no thrust at all against A. (tho this be a very difficult matter of fact to suppose, yet if the fact be supposed to be so) it seems B. forfeits no goods, because it was the act of A. himself, and some have said rather, that in that case A. is felo de se, and forfeits his goods, de quo supra, 44 E. 3. 44. Coron. 94. tho 3 E. 3. Coron. 286. saith his goods are forfeit in that case.

But where the killing of a man in his defense is in the law no felony, but the party upon his arraignment upon the special matter is to be found or judged simply not guilty, there is no forfeiture, but the party ought to be absolutely acquitted, unless he fled, and it be found, that fugam fecit, for that is a distinct forfeiture, altho the party be not guilty of the fact, and therefore always the jury is charged to inquire, whether the prisoner be guilty or not guilty, and if not guilty, whether he fled for the same, and if he fled, then to inquire also of his goods and chattles.

And the cases, where the prisoner is not to forfeit any goods or chattles, but is to be absolutely acquitted, if he kills in his own defense, are before remembered, and I here recollect them.

1. He that kills a thief, that attempts to rob him.

2. He that kills a person, that attempts to rob or kill him in or near the highway, or in the mansion of the killer, by the statute of 24 H. 8. cap. 5. and this, tho he hath not yet actually robbed. 3 E 3. Coron. 330.

3. He that kills a person, that attempts wilfully to fire his house, or to commit burglary, tho he hath not actually broken or fired the house. 26 Assiz. 23. 29 Assiz. 23. if he came with that purpose.

4. An officer or bailiff, that in execution of his office kills a person, that assaults him, tho the officer gives not back [494] to the wall, for the officer is under the protection of the law, and the books tell us it is not felony in such case. Co. P. C. p. 65. 5. The same law is of a constable, that commands the king's peace in an affray, and is resisted.

6. He that kills a felon, that resists, or justiciari se non permittit, and the like of a constable or watchman, that is charged to take a person charged with felony, or attempts to take him upon hue and cry, if the person so charged resist or fly, and cannot be otherwise taken, tho perchance he be innocent, for the reason before given, and this either before or after the arrest.

7. If there be a great riot, or rebellious assembly, how far the

killing of such persons in suppressing of them is criminal is to be

seen.

By the statute 1 Mar. cap. 12. "If any persons to the number of twelve or more shall intend, practise, or put in ure to overthrow pales, hedges, ditches, or inclosures of parks or other grounds, banks of fish-ponds, conduit-heads, or pipes, or to pull down dove-cotes, barns, houses, mills, or burn stacks of corn, or abate rents or price of victual or corn, and being required by the justices of peace, sheriff of the county, mayors, bailiffs, or head officers of cities, by proclamation in the queen's name to retire to their homes, shall remain together one hour after such proclamation, or shall put in ure such things, they shall be adjudged felons.

"And if any persons above the number of two shall unlawfully assemble to put in ure the things aforesaid, that it shall be lawful for the sheriff, justices of peace, mayors, bailiffs, and every other person having commission from the queen to raise force in manner of war, to be arrayed to suppress and apprehend the rioters, and if the persons so unlawfully assembled after command and request by proclamation shall continue together, and not return to their habitations, and if any of them happen to be kild, maimed or hurt in or

about the suppressing or taking them, the sheriff, justice, [495] mayor, &c. and their assistants, shall be discharged and unpunishable for the same against the queen and all other:" this act was continued by the statute of 1 Eliz. cap. 16. during her life.(a)

And it seems, as to this manner of killing rioters, that resist the ministers of justice in their apprehending, it is no other but what the common law allows, or at least what the statute of 13 H. 4. cap. 7. implicitly allows to two justices of the peace, with the sheriff or under-sheriff of the county, by giving them power to raise the posse comitatus, if need be, and to arrest the rioters, and they are under the penalty of 1007. if they neglect their duty herein.

And with this agrees Mr. Dallon, cap. 46. p. 115., (b) cap 98. p. 249.,(c) and Crompt. de Pace 62. b. "Nota, que viscount & justices de peace point prendre tants des homes in harneys, quant sont necessary & guns &c. & tuer les rioters, sils ne voilent eux rendre, come fuit pris in case de Drayton Basset, car le statute 13 H. 4. cap. 7. parle, quils eux arrestant, & si les justices ou ascuns de leur company tue ascun des rioters, qe ne voil render nest offence in lui, come fuit auxi prise in le dit case de Drayton Basset;"(d) and note, that tho the statute of 1 Eliz. was then in force, yet that was not a case within that statute, nor depending on it.

And it seems the same law is for the constable of a vill in case a riot happens within a vill, he may assemble force within his vill to arrest the rioters, and if he or those assembled in his assistance come to arrest the rioters, and they resist, and be kild by the con

(a) 1 Geo. cap. 5. a new act was made to the same purport, which is perpetual.
(b) New Edit. cap. 182. p. 297.
(d) See also Crompt. 23 b.

(c) Cap. 150. p. 481.

stable or any of his assistants, the constable and his assistants are dispunishable for the same, for he is enabled hereunto by the common law, as being an officer for the preservation of the peace, and may command persons to his assistance, and if they refuse, they are fineable for it.

And farther, the statute of 17 R. 2. cap. 8. commands and authorizes the king's ministers to use all their power [ 496 ] to take and suppress such riots and rioters, and a constable

is the king's minister; and the statute of 13 H. 4. cap. 7. is no repeal of this statute, so that the killing of a rioter by a sheriff, justice of peace, or constable, when he will resist and not submit to the arrest, seems to be no felony at common law, nor makes any forfeiture, for they do but their office, and are punishable if they neglect it.

8. If the prisoners in goal assault the goaler, and he in his defense kills any of them, this is no felony, nor makes any forfeiture. 22 Assiz. 5. per Thorp, adjudge per tout le councel.*

*See ante p. 424, note 1.

CHAPTER XLII.

CONCERNING THE TAKING AWAY OF THE LIFE OF MAN, BY THE COURSE OF LAW, OR IN EXECUTION OF JUSTICE.

THIS kind of occision of a man according to the laws of the kingdom and in execution thereof ought not to be numbered in the rank of crimes, for it is the execution of justice, without which there were no living, and murders, burglaries, and all capital crimes would be as frequent and common, as petit trespasses and batteries.

The taking away of the life, therefore, of a malefactor according to law by sentence of the judge, and by the sheriff or other minister of justice pursuant to such sentence, is not only an act of necessity, but of duty, not only excusable, but commendable, where the law requires it.[1]

But because there are some cautions and considerations

in this matter, I have added it to the close of this title of [497] homicide.

Regularly it is not lawful for any man to take away the life of another, tho a great malefactor, without evident necessity, (whereof before,) or without due process of law, for the deliberate, uncompelled extrajudicial killing of a person attaint of treason, felony, or murder, or in a præmunire, tho upon the score of their being such, is murder.(a)

(a) Coron. 203.

[1] Foster, 267; 4 Bl. Com. 178.