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public works, shall forfeit one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Common- wealth, allowing a reasonable part of the profits for the support of his family. ‘The second offence shall be deemed murder.
And where persons, meaning to commit a trespass* only, or larceny, or other unlawful deed, and doing an act from which involuntary homicide hath ensued, have heretofore been adjudged guilty of manslaughter, or of murder, by transferrmg such their unlawful intention to an act, much more penal than they could have in probable contemplation; no such case shall hereafter be deemed manslaughter, unless manslaughter was intended, nor murder, unless murder was intended.
In other cases of homicide, the law will not add to the miseries of the party, by punishments or forfeitures.†
of it, frame a bill ‘for the employment and government of felons, or male- factors, condemned to labor for the Commonwealth,’ which may serve as an Appendix to this, and in which all the particulars requisite may be directed : and as experience will, from time to time, be pointing out amendments, these may be made without touching this fundamental act. See More’s Utopia pa. 50. for some good hints. Fugitives might, in sucha bill, be obliged to work two days for every one they absent themselves.
- The shooting at a wild fowl, and killing a man, is homicide by misad-
venture. Shooting at a pullet, without any design to take it away, is man- slaughter ; and with a design to take it away, is murder. 6 Sta. tr. 222. To shoot at the poultry of another, and thereby set fire to his house, is arson, in the opinion of some. Dalt.c. 116. 1. Hale’s P. C. 569. contra.
† Becgaria. § 32. Suicide. Homicides are, 1. Justifiable. 2. Excusable. 3. Felonious. For the last, punishments have been already provided. The first are held to be totally without guilt, or rather commendable. The se- cond are in some cases, not quite unblamable. These should subject the party to marks of contrition; viz. the killing of a man in defence of property ; so also in defence of one’s person, which is a species of excusable homicide ; because, although cases may happen where these also are commendable, yet most fre- quently, they are done on too slight appearance of danger; as in return for a blow, kick, fillup, &c.; or on a person's getting into a house, not animo furan- di, but perhaps veneris causa, &c. Bracton says, ‘si quis furem noctufnum occident, ita demum impune foret, si parcere ei sine periculo suo non potuit, si autem potuit, aliter erit.’ Item erit si quis hamsokne quae dicitur invasio do- mus contra pacem domini regis in domo sua se defenderit, et invasor occisus fuerit ; impersecutus et inultus remanebit, si ille quem invasit aliter se de- fendere non potuit; dicitur enim quod non est dignus habere pacem qui non vult observare eam.’ L. 3. c. 23. § 3. ‘ Qui latronem occiderit, non tenetur, nocturnum vel diurnum, si aliter periculum evadere non possit ; tenetur ta- men si possit. Item non tenetur si per infortunium, et non animo et voluntate occidendi, nec dolus, nec culpa ejus inveniatur.’ L. 3. ce. 36. § 1. The stat. 24. H. 8.c. 5. is therefore merely declaratory of the Common law. See on the general subject Puffend. 2.5. § 10. 11. 12.16.17, Excusable homicides are by misadventure, or in self-defence. It is the opinion of some lawyers, that the Common law punished these with death, and that the statute of Marl- bridge, c. 26. and Gloucester, c. 9. first took away this by giving them title to a pardon, as matter of right, and a writ of restitution of their goods. See 2. Inst. 148. 315. 3. Inst.55. Bracton L. 3. c. 4. § 2. Fleta L. 1. ec. 22. §. 14. 15.
