178 PUBLIC BOOK IV.
the higheſt crime againſt the law of nature, that man is capable of committing.
I. JUSTIFIABLE homicide is of divers kinds.
I. SUCH as is owing to fome unavoidable neceffify, without any will, intention, or defire, and without any inadvertence or negligence, in the party killing, and therefore without any fha- dow of blame. As, for inftance, by virtue of fuch an office as obliges one, in the execution of public juftice, to put a male- factor to death, who hath forfeited his life by the laws and ver- dict of his country. This is an act of neceffity, and even of civil duty ; and therefore not only justifiable, but commendable, where the law requires it. But the law muft require it, other- wife it is not juftifiable : therefore wantonly to kill the greateft of malefactors, a felon or a traitor, attainted or outlawed, deli- berately, uncompelled, and extrajudicially, is murder . For as Bracton d very juftly obferves, " ijlud homiddium Ji fit ex /zvore, " ve/ dele flat lone ejfundendi humanum fanguinem, licet jujle occidatur " ijle, tamen occijbr peccat mortaliter, propter intentionem cor r up- ' tarn." And farther, if judgment of death be given by a judge not authorized by lawfnl commiffion, and execution is done ac- cordingly, the judge is guilty of murder . And upon this ac- count fir Matthew Hale himfelf, though he accepted the place of a judge of the common pleas under Cromwell's government (fmce it is neceffary to decide the difputes of civil property in the worft of times) yet declined to lit on the crown fide at the afTifes, and try prisoners ; having very ftrong objections to the legality of the ufurper's commiffion ( : a distinction per- haps rather too refined , fince the punifhment of crimes is at leaft as neceffary to fociety, as maintaining the boundaries of property. Alfo fuch judgment, when legal, muft be executed by i he proper officer, or his appointed deputy ; for no one elfe is required by law to do it, which requifition it is, that justifies " i Hal. P. C. 497. ' i Hawk. P. C. 70. i Hal. P. C. 497.
- ful. 120. ' Eurnet in his life.
the
