murder and justifiable homicide and excusable homicide

In the previous essay, I described the Blackstone's framework in presenting homicide doctrine, a framework he bequeathed to subsequent authors on common law homicide. Homicide was to be divided into three categories: justified, excused and felonious. Each of the categories was further divided in ways indicated. The purpose of this and the next essay is to flesh out Blackstone's treatment in more detail. To that end, I will comment both upon the gaps or seeming inconsistencies in his system as well as the interesting phrases or pieces of learning he brings into our world. Ten points especially call for comment.

1. The first point of interest is the way that history, rather than some amorphous "moral consideration" often shapes or determines how serious a killing offense is considered. For example, under justifiable homicide (where there is no penalty at all), Blackstone lists a rather curious practice--"If trespassers in forests, parks, chases, or warrens do not surrender themselves to the keepers, they may be slain." This is in virtue of a mid-13th century law del malefactoribus in parcis (21 Edw I. St. 2), confirmed by a late 17th century statute (3 & 4 W & M ch. 10). Blackstone tries to explain: "there must be an apparent necessitiy on the officer's side...the deer-stealers could not but escape, unless such homicide were committed." Doesn't this invite a law review note (which I am sure does not exist) on the nature of deer-stealing in the mid-13th century?

Or, another example. In his discussion of felonious homicide Blackstone mentions that there was one species of manslaughter (generally defined as "hot passion killing" [voluntary] or killing in the process of doing an illegal act [involuntary]) which is punished as murder. This means that benefit of clergy is not available as a defense. What is the crime? "The offense of mortally stabbing another, though done upon sudden provocation." Of course this fits the definition of manslaughter perfectly, but, as he says, it is punished as murder. Why? An early 17th century statute (I Jac. I ch. 8) provides that when one thrusts or stabs another, not then having a weapon drawn, or who has not then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have benefit of clergy, though he did it not of malice aforethought. This statute, as could be expected, arose because of the "frequent quarrels and stabbings with short daggers" in fights between Scotch and English at the accession of James I in 1603. But even Blackstone asys that this "ought to have expired with the mischief." He then goes on to discuss subsequent treatment of stabbers and others, though with considerable obscurity. Thus we see that even in an area where we would have thought that "moral considerations" would have been most clear in defining an offense and law, we have historical considerations that trump.

2. Blackstone, for all his systemic clarity, is obscure in many important issues. A case in point deals with preventing "forcible and atrocious crimes" by killing the perpetrator, which is justifiable homicide. He gives the example of rape, for example. But then he quotes other systems of law (Roman, Greek) which justify killing for burglary at night while not stating the common law approach to the issue. Finally, he decides to lay down a principle: "that where a crime, in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting." Thus, it would appear that killing the perpetrator is only justified if someone is attempting to rape one's wife or daughter, unless the victim's life is in danger. This seems quite tricky and difficult to apply in many circumstances. And, just to finish this point, a person would commit manslaughter if he comes upon his wife having sex with another person and kills that person, while coming upon an attempted rape of his wife/daugher justifies the killing. How does one determine, in a snap judgment, how "willing" the wife/daugher is? How do you know, if you are being robbed for example, if the crime being perpetrated on you is or may be "capital?" Do you have to wait to find out? It is questions like this that convinced Bentham that Blackstone had only given a rather deceptive treatment of the common law.

3. Blackstone makes a helpful distinction when he considers excusable homicide per infortunium (by misadventure). If the head of your hatchet flies off when you are working and kills someone, you have committed an accidental homicide. Your activity is legal but it ends up doing something illegal, and you have committed a homicide. However, you will not be punished as severely as if you are doing an illegal activity and death results. This leads to his distinction between types of punishment by the "manner, instrument, or the quantity." Punishment of children or servants is legal, but if you punish with a switch and the servant dies, your guilt will be less (unless you punished excessively) than if you punished with a club. The former is excusable homicide while the latter is felonious.

4. Let's close this essay with another historical distinction: killing someone in a "tilt or tournament," which would be felonious homicide, because it was illegal activity, and killing through "trial by battle," which is justifiable homicide. These might look like similar activities, but they carried different meanings. "If the champions in a trial by battle killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, who was thereby perfumed (i.e., "presumed") to have decided in favor of the truth."

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