A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

HOMICIDE.

Homicide, is when ••ne is slain with a mans* 1.1 will, but not with malice prepensed: most pro∣perly it is hominis occisi•• ab homine facta.

Bracton saith, it is homicide if one strike a wo∣man great with child, so that she miscarry; Si puer perium animatum fuerit, and this agreeth with the Canon and Civil Law, but the contrary is now Law amongst us.

To make it Homicide, it is requisite

1. That the party killed be in esse, viz. in rerum natura, for if a man kill an Infant in his Mo∣thers* 1.2 Womb, this is no felony, neither shall he forfeit any thing for it, for two Causes.

• 1. Because the thing had no Name of Bap∣tism.
• 2. Because it is hard to judg whether the Insant dyed of the Battery or not, or upon some other cause. Fitzherbert puts a stronger case, viz. If a man strike another woman great* 1.3 with child with two Infants, so that present∣ly after one of them die, and the other was born and baptized, and two daies after, for the hurt that he had received dieth, and yet it was no felony.

But if a woman being delivered of a Child doth presently kill it before it be baptized, this is felony in her, though the Child had no Name of Baptism; because the Child was in rerum

natura before it was killed, and it is known by* 1.4 whom, and by what means that Child came to his death.

Anno primo Iacobi Regis, c. 8. An Act to restrain suddain killing and stabbing of men done in time of drunkenness, rage, and hidden displeasure. Be it enacted that if any shall siab or thrust any that hath not a weapon drawn, nor hath first stricken, and the party dieth thereof within six moneths, the offender being thereof convicted by verdict of twelve men, confession or other∣wise, shall suffer death, as in case of wilfull murder, without benefit of Clergy. This Statute shall not extend to killing, se defendendo, by mis∣fortune or in other manner, then as aforesaid, nor to man-slaughter done in keeping of the Peace, so as it be not wittingly under colour of keeping the Peace, nor to any which in correcting Child or Servant shall beside their intent commit man∣slaughter, this Statute to continue untill the end of the first Session of the next Parliament, con∣tinued 21 Iacobi, cap. 28. & tertio Caroli cap. 4. to the end of the first Session of the next Parlia∣ment.

The offender in this case shall have his Clergy, but shall forfeit his goods.

There is Homicide,

• 1. Of malicious purpose, which we call mur∣der.
• 2. Upon the suddain, in a heat and fury of mind,* 1.5 which we term man-slaughter.
• 3. Which we call se defendendo.
• 4. Per infortunium, homicide of a mans self, whereby the offender is called Felo de se.

Man-slaughter se defendendo, is where two fight together upon a suddain, and before the mor∣tall

wound on either party, the one flieth unto the wall or some other place, beyond which he cannot pass, for the safeguard of his life, and the other pursueth him, and he which flieth kil∣leth him that pursueth, this is man-slaughter in his own defence, and the offender in this case shall forfeit his goods.

Quod quis ob tutelam corporis sui ecerit, jure id fecisse videtur.

Notes

• * 1.1

  Cook on Lit. l. 3. c. 8.
• * 1.2

  Stamf. pl. of Cr. l. 1. and Pulton de pace Regis.
• * 1.3

  Brooks abr. f. 177. and Stamf.
• * 1.4

  Stamford and Pulton▪
• * 1.5

  Delinquens per iram provocatus puriri debet mitius. The chief reason why seipsum ••esen••len∣do is not matter of justification, is because Law suppo∣seth it hath a com∣mencement upon an un∣lawfull cause.