H O M I 
in all thefe cafes, there muft be an apparent neceffity on 
•the officer’s fide, viz. that the party could not be arrefted 
•or apprehended, the riot could not be fupprefted, the pri¬ 
soners could not be kept in hold, the deer-Healers could 
not but efcape, unlefs fuch homicide were committed : 
otherwife, without fuchabfoluteneceffity, it is notjujlifiable. 
Such homicide as is committed for the prevention of 
any forcible and atrocious crime, is juftifiable by the law 
of nature, and alfo by the law of England, as it Hood fo 
early as the time of Brafton, and as it is fince exprel’sly 
■declared by Hat. 24 Hen. VIII. c. 5. If any perfon at¬ 
tempts a robbery or murder of another, or attempts to 
break open a houfe in the night time, (which extends alfo 
to an attempt to burn it,) and ffiall be killed in fuch at¬ 
tempt, the flayer (hall be acquitted and difcharged. 1 Hal. 
P. C. 488. And not. only the mafter of a houfe, but a 
lodger or a fojourner, who kills an affailant intending to 
commit murder or robbery, is within the proteftioii of 
the law. This reaches not to any crime unaccompanied 
with force , as picking of pockets, or to the breaking open 
of any houfe in the day time, unlefs it carries with it an 
attempt of robbery alfo. 4 Blackjl. Comm. c. 14. 
Juftifiable homicide of a private nature, iir the juft de¬ 
fence of a man’s perfon, houfe, or goods, may happen 
either by the killing of a wrong-doer, or an innocent per¬ 
fon. And firft, the killing of a wrong-doer in the mak¬ 
ing of fuch defence, may be juftified in many cafes ; as 
where a man kills one who aftaults him in the highway to 
rob or murder him ; or the owner of a houfe, or any of 
his fer'vants, orlodgers, &c. kill one who attempts to burn 
it, or to commit therein murder, robbery, or other felony ; 
or a woman kills one who attempts to raviftt her; or a 
fervant coming fuddenly, and, finding his mafter robbed and 
{lain, falls upon the murderer immediately and kills him; 
for he does it in the height of his furprife, and under juft 
apprehenfions of the like attempt upon himfelf; but in 
other circumftances, he could not have juftified the killing 
of fuch an one, but ought to have apprehended him, &c. 
i Hawk. P. C. c. 28. 
Neither can a man juftify the killing another in defence 
of his houfe or goods, or even of his perfon, from a bare 
private trefpafs; and therefore he that kills another, who, 
claiming a title to his houfe, attempts to enter it by force 
and (hoots at it, or that breaks open his windows in order 
to arreft him, or that perfifts in breaking his hedges after 
he is forbidden, is guilty of manflaughter; and he, who 
in his own defence kills another that affaults him in his 
houfe in the day-time, and plainly appears to intend to 
beat him only, is guilty of homicide J'e defendendo, for 
which he forfeits his goods, but is pardoned of courl’e; yet 
it feems, that’a private perfon, and, a. fortiori , an officer 
of juftice, who happens unavoidably to kill another en¬ 
deavouring to defend himfelf from, or fupprefs, danger¬ 
ous rioters, mayjuftify the fact, inafinuch as he only does 
his duty in aid of public juftice. According to Mr. Ser¬ 
jeant Hawkins, 'z perfon who without provocation is af- 
laulted by another in any place whatfoever, in fuch a 
manner as plainly (hows an intent to murder him, as by 
difcharging a piftol, of pufhing at him with a drawn 
fword, &c.. may juftify killing fuch an affailant, as much 
as if he had attempted to rob him. 1 Hawk. P. C. c. 28. 
Halt. 98. Cro. Car. 338. 
The Roman law alfo juftifies homicide, when committed 
in the defence of the chajlity either of one’s felf or rela¬ 
tions. The Englifh law alio juftifies a woman in killing 
one who attempts to raviffi her ; Bac. Elem. 34; and fo too, 
the hufband or father may juftify killing a man, who at¬ 
tempts a rape upon his wife or daughter; but not if he 
takes them in adultery by confent, for the one is forcible 
And felonious., but not the other. 1 Hal. P. C. 485. And 
there feems no doubt but the forcibly attempting a crime 
of a ftill more deteftible nature, may be equally refilled 
by the death of the unnatural aggreffor. For the one 
uniform principle, that runs through our own and all 
other laws, feems to be this ; that where a crime, in itfelf 
c I D E. 239 
capital, is endeavoured to be committed by force, it is 
lawful to repel that force by the death of the party at¬ 
tempting. 4 Blackfi. Comm. c. 14. In thefe inftances of jufti¬ 
fiable homicide, it may be proper to obferve, that th efayer 
is in no kind of fault whatfoever, not even in the minuteft 
degree; and is therefore to be totally acquitted and dif¬ 
charged, with commendation rather than blame. 1 Hawk. 
P. C. c. 28. 
2. Homicide per infortunium, or. Misadventure, is 
where a man doing a lawful aft, without any intention of 
hurt, unfortunately kills another; as where a man is at 
work with a hatchet, and the head thereof flies off and 
kills a ftander-by; or where a perfon qualified to keep a 
gun, is (hooting at a mark, and undefignedly kills a man ; 
for the aft is lawful, but the effieft. accidental. 1 Hawk. P. 
C. c. 29. So where a perfon is moderately correcting his 
child, a mafter his apprentice or fsholar, or an officer 
punifhing a criminal, (as by whipping,) and happens to 
occafion his death, it is only mifadventure; for the aft of 
correction was lawful; but if he exceeds the bounds of 
moderation, either in the manner, the inftrument, or the 
quantity, of punifhment, and death enf’ues, it is man¬ 
flaughter at leaft; and in fome cafes (according to the 
circumftances) murder; for the act of immoderate correc¬ 
tion is unlawful. 1 Hal. P. C. 473. Where an officer of 
the imprefs fervi.ce in the navy fires at a boat in order to 
bring her to, and kills a man, it is irnpoffible that the of¬ 
fender fhould be made guilty of more than manflaughter, 
efpecially if he fires in the manner ufual upon fuch occa- 
fions. Cowp. 832 .per Ld. Mansfield. 
A tilt or. a tournament, the martial diverfion of our 
anceftors, was however an unlawful acl; and fo are box¬ 
ing and fword-playing, the fncceeding amufements of 
their pofterity; and therefore if a knight in the former 
cafe, or a gladiator in the latter, be killed, fuch killing is 
felony of manflaughter. Likewife to whip another’s 
horfe whereby-he runs over a child and kills him, is held 
to be accidental death in the rider, for he has done no¬ 
thing unlawful; but it is manflaughter in the perfon who 
whipped the horfe; for the aft was a trefpafs, and at beft 
a piece of idlenefs of inevitably dangerous confequence. 
1 Hawk. P. C. c. 29. Where one lawfully ufing an inno¬ 
cent diverfion, as (hooting at butts, or at a bird, See. by 
the glacing of an arrow, or fuch like accident, kills an¬ 
other, this is only homicide by miiadventure. Kcilw. 108. 
Bro. Cor. 148. See Kelynge 4. So where a perfon happens 
to kill another in playing a match of foot-ball, wreftling, 
or fuch like l'ports which are attended with no apparent 
danger of life, and intended only for the trial, exercile, 
and improvement, of the ftrength, courage, and aftivity, 
of the parties. Crom. 29 a. 11 H. 7. 23 a. 
Homicide in felf-defence, or fe defendendo, upon a hid¬ 
den affray, is alfo excufable, rather than juftifiable, by 
the Englifh law. This lpecies of felf-defence mull be dif- 
tinguifhed from that already mentioned, as calculated to 
hinder the perpetration of a capital crime ; which is not 
only a matter of excufe, but of juftification. But the felf- 
defence, which we are now (peaking of, is that whereby 
a man may proteft himfelf from an aftkult or the like, in 
the courfe of a hidden quarrel, by killing him who af¬ 
faults him: and this is what the law expreft’es by the word 
chance-medley . This right of natural defence does not im¬ 
ply a right of attacking; for, inftead of attacking one 
another for injuries paft or impending, men need only 
have recourfe to the proper tribunals of juftice; they can¬ 
not therefore legally exercif'e this right of preventive de¬ 
fence, except in hidden and violent cafes, when certain 
and immediate fuffering would be the confequence of wait¬ 
ing for the affiftance of thelaw. Wherefore, to excufe ho¬ 
micide by the plea of felf-defence, it mult appear that the 
flayer had no other poffible, or, at leaft, probable, means 
of efcaping from his affailant. 
There is one fpecies of homicide fe defendendo, where 
the party (lain is equally innocent as he who occafions 
his death ; and yet this homicide is alfo excufable from 
the 
