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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, ,j-c., p. 285, 266.

(z) 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



CHAP. III. § 3.] BY OFFICERS. 667

Gaolers and their officers are under the same special protection as Onoiors
other ministers of justice ; and therefore, if in the necessary discharge agaigtants
of their duty, they meet with resistance, whether from prisoners in killin^j
civil or criminal suits, or from others, in behalf of such prisoners, thcyl^"*''"*^"*
arc not oblij^od to retreat as far as they can with safety, but may
freely, and without retreatin^i, 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 homi-
cide. (//)

Sir William Ilawkcsworth being weary of life, and willing to be rid Malefnc
of it by the hand of another, having first blamed his keeper for suffer- '""*.'"
ing 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 de-
cided to be excusable homicide by the statute De malefactoribus in par-
cis.[z\

A man may repel force by force in defence of his person, habitation, IXomicido
or property, against one who manifestly intends and endeavours by vio- y"cift'io"n of
Icnce or surprise, to commit a known felony upon cither. In these cases any forci-
he is not obliged to retreat, but may pursue his adversary till ^^^ finds j^'J^J^P^^^^
himself out of danger : and if in a conflict between them, he happens to crime,
kill, such killing is justifiable, (a) ]3ut it has been holden, that this rule
does not apply to any crime unaccompanied *with force, as picking of *6G8
pockets. (i) 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.,) tbat tlielife of B. is in imminent danger; other-
wise his killing the assailant will not be justifiable self-defence. (c) There
must be an intention on the part of the person killed to rob, or murder,
or to do some dreadful bodily injury to the person killing ; or the conduct
of the party must be such as to render it necessary on the part of the
party killing to do the act of self-defence. (r7) And the rule clearly ex-
tends 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 boat-
such a case to attend and assist the king's officers in preserving the pe.acc. And, certainly,
if private persona interfere to suppress a riot, they must give notice of their intention. See
note (/), ante, p. 280.

(.;/) Post. 321. 1 Hale, 481, 40G.

(?) 1 Hale, 40. By the 21 Ed. 1, st. 2, if a forester, parkcr, or wnrrcncr, found any
trespassers wandering vrithin liis liberty, intending to do damage therein, who would not
yield, after hue and cry made to stand unto the peace, but continued their malice, and dis-
obeying the king's peace, did Hee or defend themselves with force and arms, if .such forester,
parker. or warrencr, or their assistants, killed such ofTondcrs, either in arresting or taking
them, they shouM not be troubled for the same, nor suffer any punishment. The 21 I'd. 1,
St. 2, was repealed by the 7 & 8 Geo. 4, c. 27, and Geo. 4, c. ')3. And the 3 & 4 \\m. &
M. c. 10, by the IG Geo. 3, c. 30. and the 4 & r> Wm. & M. c. 23, by the 7 & 8 Geo. 4, c. 27,
and the 1 & 2 Wm. 4, c. 32. All further reference to their provisions has therefore been
omitte<l. C. S. G.

(a) Fob. 273. Kel. 128, 126. 1 Hale, 445, 481, 484, et seq. 1 Hawk. V. C. c. 28, s. 21,
24. Reg. r. Hull,' 9 C. & P. 22.

(b) 1 Hale, 488. 4 Bla. Com. 180. But if one pick my pocket, and I cannot otherwise
take him than by killing him, this falls under the general rule concerning the arresting of
felons. 1 East, P. C. c. 5, s. 45, p. 273.

(c) 1 Hale, 484.

(rf) Reg. V. Bull,' 9 C. & P. 22, Vaughan and Williams, Jg.
' Eng. Com. Law Reps, xxxviii. 19.
VOL. I 45



668 OF JUSTIFIABLE HOMICIDE [BOOK III.



ino- of him, so far as to make him desist, yet if he kill him, it is man-
slaughter, (e) But if a house be broken open, though in the day-time,
with a felonious intent, it will be within the rule.(/) A person who is
set to wateh a yard or garden by his master, is not justified in shooting
any one who comes into it in the night, even if he sec him go into his
master's hen-roost, and some dead fowls and a crow-bar be found near
him ; but if from his conduct he has fair ground to believe his own life
in actual danger, he is justified in shooting him.(^)
Grounds of Important considerations will arise in cases of this kind, as to the
suspicion of grounds which the party killing had for supposing that the person slain
."iielf "n '°"^ had a felonious design against him ; more especially where it afterwards
Level's appears that no such design existed. One Levet was indicted for killing
case. Y, Y., under the following circumstances. Levet being in bed and

asleep, his servant, who had procured F. F. 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 F. F., hid her in the buttery. Levet with his sword searched
the entry for thieves, when his wife, spying F. F. in the buttery, and
not knowing her, conceived her to be a thief, and cried out to her hus-
band in great fear, " Here they be that would undo us :" when Levet,
not knowing that it was F. F. in the buttery, hastily entered with his
drawn sword, and being in the dark, and thrusting before him with his
*669 sword, thrust F. F. under the left breast and gave her a mortal *wound,
of which she instantly died. (/;) 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.(/) Upon this opinion, however, some observa-
tions have been made; and it has been ably argued, upon the peculiar
facts and circumstances of the transaction, that the case seems more
properly to be one of those mentioned by Lord Hale,(j) where the igno-
rance of the fact excuses the party from all sort of blame, (/i-) And in
another book of great authority, the case is mentioned as one in which
the defendant might have justified the fact under the circumstances, on
the ground that it had not the appearance even of a fault. (^)
AiiTjarenev Questions will also sometimes arise as to the apparency of the intent
of intent, in one of the parties to commit such felony as will justify the other in
killing him. Mawgridge, on words of anger, threw a bottle with great
force at the head of Mr. Cope, and immediately drew his sword, upon

(e) 1 Hale, 485, 48G. 1 Hawk. P. C. c. 28, s. 23. Kel. 132. 1 East, P. C. c. 5, s. 44,
p. 272.

(/) 1 East, P. C. c. 5, s. 44, p. 273. In 4 Bla. 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. {See State v. Zellers, 2
Halstead's Rep.|

{(j) Rex V. Scully,i 1 C. & P. 319, Garrow, B. The 24 Hen. 8, c. 5, by which persons
killing those who were attempting to rob or murder, or commit burglary, were not to suffer
any forfeiture of goods, &c., but to be fully acquitted, and which was here referred to in the
last edition, was wholly repealed by the 9 Goo. 4, c. 31. C. S. G.

(/i) Levet's case, Cro. Car. 538. 1 Hale, 42, 474. Jones (W.) 429.

(i) Fost. 299. ( /) 1 Hale, 42.

(k) 1 East, P. C. c. 5, s. 4G, p. 274, 275. {I) 1 Hawk. P. C. c. 28, s. 27.

' Eng. Com. Law Reps. xi. 407.



CHAP. III. § 3.] IN PREVENTING CRIMES. 669

which Mr. Cope returned a bottle with equal violence :(m) and it was ^law- ^

held that this was lawful and justifiable on the part of Mr. Cope, on^'^g^f*^

the ground that he that has manifested malice against another, is not fit

to be trusted with a dangerous weapon iirhis hand.(») There seems to

have been good reason for Mr. Cope to have supposed that his life was

in danger : and it was probably on the same ground that the judgment

on Ford's case proceeded. Mr. Ford being in possession of a room at a pord'a

tavern, several persons insisted on having it, and turning him out, which case.

he refused to submit to : thereupon they drew their swords upon Mr.

Ford and his company, and 3Ir. I'^ird drew his sword, and killed one of

them : and this was adjudged justifiable homicide. (o) For if several

attack a person at once with deadly weapons, as may be supposed to

have happened in this case, though they wait till he be upon liis guard,

yet it seems, (there being no compact to fight,) that he would be justified

in killing any of the assailants in his own defence; because so unequal

an attack resembles more a desire of assassination than of combat. (p) ,. ,

But no assault, however violent, will Jinidfi/ killing the assailant under felonious

the plea of necessity, unless there be a plain manifestation of a felonious'"'*^'?* ^^ ,
/\»i'i/«i 111 • ulunifested,

intent. ((^) And it may be further observed, that a man cannot, in any .,„ nssault,
case, justify killing another by a pretence of necessity, unless he wercl'pwever
wholly without fault in bringing that necessity upon himself; for if he „.iii'^not
kill any person in defence of an injury done by himself, he is guilty ofjustify
manslaughter at least : as in the case where a body of people wrongfully ,,',^|"*'' ^
detained a house by force, and *killcd one of those who attacked it, and *(370
endeavoured to set it on fire.(r)

Mr, J. Foster was of opinion, that upon the same principle upon
which Mawgridge's case was decided, and possibly upon the rule touch-
ing the arrest of a person who has given a dangerous wound, the legis-
lature, in the case of the Marquis de Guiscard, who stabbed Mr. Ilarley
sitting in council, discharged the parties who were supposed to have
given the marquis the mortal wound from all manner of prosecution on
that account, and declared the killing to be a lawful and necessary
action, (.s)

Wlicre a known felony is attempted upon any one, not only the party Tutor-
assaulted may repel force by force, but his servant attending him, or '"»'';<^nce by
any other person present, may interpose to prevent the mischief; and ifsonstopre-
death ensue, the party so interposing will be justified. (/) 80, where anventfelo-
attempt is made to commit arson, or burglary, in the habitation, any°'°*'
part of the owner's family, or even a lodger, may lawfully kill the
assailants, in order to prevent the mischief intended, (m)

(m) iMawpridpe's case, Kel. 128, 129, ante, p. 529.

(n) By Lord Holt. Kel, 128, 129. (0) Ford's case, Kel. 51.

(p) 1 Kast, 1*. C. c. 5, s. 47, p. 27G ; and sec 1 East, I'. C. c. 5, s. 2'), p. 2A">, wlioro Ford's
case is observed upon ; and it is said that the memorandum in the margin of Kelvng to
inquire of this case, and the quwre used by Mr. J. Foster in citing it, were probably made
on the ground of the reason suggested in the margin of Kelyng for the judgment, namely,
that the killing Vij' Mr. Ford in the defence of iiis own possession of the room was justifiable,
which under those circumstances, might be fairly questioued : as, on that ground, it might
have been better ruled to be manslaughter.

(q) 1 East, P. C. c. 5, s. 47, p. 277.

(r) 1 Hawk. P. C. c. 28, s. 22. 1 Hale, 405, 440, 441.

(«) 9 Anne, c. lO, which was repealed by the 9 Geo. 4, c. .11. Fost. 275.

(t) 1 Hale, 481, 481. Fost. 274. And in Handcock v. Baker and others, .1 Bos. & Pul.
205. Chambre, J., said, "It is lawful for a private person to do any thing to prevent the
perpetration of a felony."

(«) Fost. 274.



670 OF DESTROYING INFANTS IN THE WOMB. [bOOK III.

Inter- ]3ut, in cases of mutual combats or suddcu affrays, a person interfering

tMrd*per-^ sliould act with much caution. Where, indeed, a person interferes betweea

sous in two combatants with a view to preserve the peace, and not to take part

cases of jj.jj pjtijej. (riviuo; due notice af his intention, and is under the necessity

combats of killing one of them in order to preserve his own life or that of the

"•"'^"'^'■''y^- other combatant, it being impossible to preserve them by other means,

such killing will be justifiable :(<') but, in general, if there be an affray

and an actual fighting and striving between persons, and another run in,

and take part with one party, and kill the other, it will not be justifiable

homicide, but manslaughter, (w)^

Time with- It should be observed, that as homicide committed in the prevention

honi^icide ^^ forcible and atrocious crimes is justifiable only upon the plea of

will be jus- necessity, it cannot be justified, unless the necessity continue to the

tifiable. ^jjj^g when the party is killed. Thus, though the person upon whom a

felonious attack is first made be not obliged to retreat, but may pursue

the felon till he finds himself out of danger; yet if the felon be klled

after he has been properly secured, and when the apprehension of danger

has ceased, such killing will be murder ; though perhaps, if the blood.

were still hot from the contest or pursuit, it might be held to be only

manslaughter, on account of the higli provocation, (x)



*671 *CHAPTER THE FOURTH.

OF DESTROYING INFANTS IN THE MOTHER'S WOMB.(a)

Common "We have already seen, that an infant in his mother's womb, not

law offence. -i^gjjjg ^-^^ rerum naturCi, is not considered as a person who can be killed

within the description of murder. («) An attempt, however, to effect the

destruction of such an infant, though unsuccessful, appears to have been

treated as a misdemeanor at common law.(Z*>

{v) 1 Hale, 484. 1 East, P. C. c. 5, s. 58, p. 290.

(w) 1 East, P. C. c. 5, s. 58, p. 291. Ante, p. 590 ; and see also ante, Book II., chap.
xxvi. Of Affrays, p. 291,

{z) 1 P. C. c. 5, s. 60, p. 293. 4 Bla. Com. 185. 1 Hale, 485.

(a) Ante, p. 485.

{b) See a precedent of an indictment for this offence as a misdemeanor at common law in
3 Chit. Crim. Law, 798, procured from the Crown Office, Mich. T. 42 Geo. 3.

f [When a person, who is neither assaulted or threatened, gets down from his horse, arms
himself with a club, interposes himself between two other persons who are about to engage
in a fight, and kills one of them, this is murder. Johnston's case, 5 Gratt. G60.]

(A) I have met with no American statutes for the punishment of this offence, or which in
any manner relate to it. The destroying of infants in the mother's womb, is an offence at
common law, and has been proceeded with as such, in the courts of Massachusetts. But it
Las been decided in that state, that to administer a potion to a pregnant woman with an in-
tent to procure an abortion, is not an indictable offence, unless the woman be quick with child,
and an abortion ensue. Coinmomccallh v. Bangs, 9 Mass. Reps. 387. {By the revised statutes
of New York, wilful attempts to procure the miscarriage of a pregnant woman, are punishable
by imprisonment not more than one year, or by a fine not more than $500, or both. Vol.
II., 694. And administering to a woiuan pregnant with a quick child, any medicine, drug,
&c., or using any instrument or other means, with intent to destroy such child, (unless the
same be necessary, or shall be advised by two physicians to be necessary, to preserve the
life of the mother,) is punishable as manslaughter in the second degree. Vol. II., 661. The
wilful killing of an unborn quick child, by any injury to the mothei-, which would be murder
if it resulted in her death, is punishable as manslaughter in the first degree. Ib.\

[It is not a punishable offence, by the common law, to perform an operation upon a preg-
nant woman, with her consent, for the purpose of procuring an abortion, and thereby to
effect such purpose, unless the woman be quick with child. Commonwealth T. Parker, 9
Metcalf, 263.]



CHAP. IV.] OP DESTROYING INFANTS IN THE WOMB. 671

The 43 Geo. 3, c. 28, made certain acts, intended to procure the mis-
carriage of a woman with child, highly penal : that statute was repealed
by the 9 Geo. 4, c. 31, which is also repealed by the 1 Vict. c. 85,(c)
which enacts, by sec. 6, '< that whosoever, with intent to procure the p . .
miscarriage of any woman, shall unlawfully((/) administer to her, ormontfor
cause to be taken by her, any poison or other noxious thing, (c) or shall *'"y'"K ♦"
imlawfuny(ee) use any instrument or other means whatsoever with the abortion,
like intent, shall be guilty of felony, and being convicted thereof shall
be liable, at the discretion of the court, to be transported beyond the
seas for the term of his or her natural life, or for an}- term not less than
fifteen years, or to be imprisoned for any term not exceeding three
years."

By sec. 7, "Tn the case of every felony punishable under this actPunish-
cvcry principal in the .second degree, and every accessory before the fact, "f"'^ *.'^*''"
shall be punishable with death or otherwise in the same manner as the
principal in the first degree, is by this act punishable ; and every acces-
sory after the fact to any felony punisliable under this act shall, on con-
viction, be liable to be imprisoned for any term not exceeding two
years."

By sec. 8, "Where any person shall be convicted of any offence *pun- *672
ishable under this act, for which imprisonment may be awarded, it shall Offences
be lawful for the court to sentence the offender to be imprisoned, or tof"".'"'''"!'''
be imprisoned and kept to hard labour, in the common gaol or house of suumeuu
correction, and also to direct that the offender shall be kept in solitary
confinement for any portion or portions of such imprisonment, or of such
imprisonment with hard labour, not exceeding one month at any one time,
and not exceeding three months in any one year, as to the court in its
discretion shall seem meet.(/)

The 43 Geo. 3, c. 58, s. 1 & 2, and the 9 Geo. 4, c. 31, s. 13, made
an important distinction between the case where the woman was quick
with child, and where she was not, or was not proved to be, quick with
child. The present act makes no such distinction. It may be well,
however, to mention the following cases, which were decided upon the
repealed statutes.

Upon an indictment on the 42 Geo. 3, c. 58, s. 1, the woman, in point ^^^^ words
of fact, was in the fourth mouth of her pregnancy ; but she swore that she " <iuick
had not felt the child move within her before takinsr the medicine, and^'f!\ „

cbild,

that she was not then quick with child. The medical men in their ex- were con-
aminations, differed as to the time when the fnfiis may be stated to be''"'"*'^.
quick, and to have a distinct existence; but they all agreed, that in com- to common

(o) The 1 Vict. c. 85, s. 1, repeals fo niiicli of the 9 Geo. 4, c. 81, and tlic Irish Act, 10
Geo. 4, c. 34, "as relates to any person wlio sliall use any of the ways or means therein
mentioned, with intent to procure tlic miscarriage of any woman, or who shall counsel, aid,
or abet, therein, and so much of the same acts as relates to the punishment of accessories
after the fact, to such of the felonies punishable under those acts, as arc hereinbefore referred
to." This seems to be a repeal of sec. 13 of the 9 Geo. 4, c. 31, and sec. 10 of the 10 Geo.
4, c. 34, though the repealing clause is by no means so clear as it ought to be. C. S. G.

(d) The word "maliciously" was in the 9 Geo. 4, c. 31, s. 13.

{e) The words of the 43 Geo. 3, c. 58, in s. 1, were "any deadly poison or other noxious
and destructive substance or thing; " in sec. 2, "any medicine, drug, or other substance or
thing whatsoever." Tlie words in the Geo. 4, c. 31. where the woman was quick with
child were, " any poison or other noxious thing." AVhere the woman was not quick with
child, " an}' medicine or other thing." See note (h) jMst, p. 072.

(ee) " Unlawfully," was no" in the 9 Geo. 4, c. 31, s. 13.

(/) The act does not extend to Scotland, sec. 12. By sec. 10, offences committed within
the admiralty jui'isdictioa are triable as any other felony committed within that jurisdiction.



672 OF DESTROYING INFANTS IN THE WOMB. [BOOK III.

under- nion understanding, a woman is not considered to be quick with child
in^wh'ich' ^'^^ ^^^^ ^'^^ ^^^^ *^^^ child alivc and quick within her, which happens with
thoy signi- different women in different stages of pregnancy, although most usually
ly thiu the j^jjQ^j ^Ijq {iftcenth or sixteenth week after conception. And Lawrence,

woman has ,.,,,. , . . , ^ , , '

felt the J-, said that this was the interpretation that must be put upon the words,

child move u qnicjk ■^yith child," in the statute : and as the woman had not felt the

child alive within her before taking the medicine, he directed the jury

to acquit the prisoner. ((/)

An infusion An indictment upon the 43 Geo. 3, c. 58, s. 2, charged the prisoner

or decoc- -with having administered to a woman a decoction of a certain shrub

shrub a'ro called savin : and it appeared upon the evidence that the prisoner pre-

cjiisdcM pared the medicine which he administered, by pouring boiling water on

The'ques- ^^^ leaves of a shrub. The medical men who were examined stated, that

tion upon such a preparation is called an infusion, and not a decoction (which is

whether'^^ made by boiling the substance in the water) upon which the prisoner's

any matter counscl insisted that he was entitled to an acquittal, on the ground that

or thins i\^Q medicine was misdescribed. But Lawrence, J., overruled the ob-

was admin- . ,.,,.^. ,, . ., . ,,

istered to jection, and said that infusion and decoction are ejusdem generis^ and that
ijrocure i]^Q variance was immaterial : that the question was, whether the prisoner
administered any matter or thing to the woman to procure abortion, (/i.)
*673 ^^^ ^^^ same case, witnesses having been called on behalf of the pri-

It was not soner to prove that the shrub he used was not savin, the counsel for the
uecessary prosecution insisted that he might, notwithstanding, be found guilty
dictmentonupon the last count of the indictment, which charged that he adiniuis-
the 43 Geo. tered a large quantity " of a certain mixture, to the jurors unknown,
2' to prove ^^''^^ ^**'^ there heing a noxious and destructive thing." The prisoner's
that the counsel objected that, unless the shrub was savin, there was no evidence
was n'ox- ^^^^ ^^^^ mixture was <' noxious and destructive." Lawrence, J., held,
ious or that in an indictment on this clause of the statute, it was improper to
destriic- introduce these words ; and that though they had been introduced,
it was not necessary to prove them. And he further said, " it is im-
material whether the shrub was savin or not, or whether or not it was
capable of procuring abortion, or even whether the woman was actually
with child. If the prisoner believed, at the time, that it would procure
abortion, and administered it with that intent, the case is within the stat-
ute, and he is guilty of the offence laid to his charge." (1)

(f/) Rex V. Phillips, Monmouth Sum. Ass. 1812, cor. Lawrence, J. 3 Camp. 77.

[h) Rex V. Phillips, 3 Camp. 74, 75. And upon an indictment for murder, if the death be
laid to have been by one sort of poison, and it turn out to have been another, the difference
will not be material. Ante, p. 557. And in Pi,ex v. Coe,' 6 C. & P. 403, where the prisoner
was indicted on the 9 Geo. 4, c. 31, s. 13, for administering saffron to a female, and his
counsel was cross-examining as to her having taken something else before the saffron, and



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