182 PUBLIC BOOK IV.
of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the ſubjects, to adopt ſo contentious a ſyſtem; nor will ſuffer with impunity any crime to be prevented by death, unleſs the ſame, if committed, would alſo be puniſhed by death.
I N thefe inftances Q juftifiaHe homicide, you will obferve that the flayer is in no kind of fault whatlbever, not even in the mi- nuteft degree ; and is therefore to be totally acquitted and dif- charged, with commendation rather than blame. But that is not quite the cafe in excufable homicide, the very name whereof im- ports fome fault, fome error, or omiffion ; fo trivial however, that the law excufes it from the guilt of felony, though in ftridt- ncfs it judges it deferving of fome little degree of punifhment.
II. Excusable homicide is of two ſorts; either per Infortunium, by miſadventure; or ſe defendendo, upon a principle of ſelf-preſervation. We will firſt ſee wherein theſe two ſpecies of homicide are diſtinct, and then wherein they agree.
1. HOMICIDE per infortunium, or mif adventure, is where a man, doing a lawful act, without any intention of hurt, unfor- tunately, kills another : as where a man is at work with a hatchet, and the head thereof flies off and kills a ftander by ; or, where a perfon, qualified to keep a gun, is fhooting at a mark, and un- defignedly kills a man d : for the act is lawful, and the effect is merely accidental. So where a parent is moderately correcting his child, a matter his fervant or fcholar, or an officer punching a criminal, and happens to occafion his death, it is only mifad- venture ; for the act of correction was lawful : but if he exceeds the bounds of moderation, either in the manner, the inflrument, or the quantity of punimment, and death enfues, it is man- flaughter at lead, and in fome cafes (according to the circum- ftances) murder e j for the act of immoderate correction is un-
i Hawk. P. C. 73, 74. 1 Hal. P. C. 473, 474. lawful.
