Ch. 14. WRONGS. 183
lawful. Thus by an edict of the emperor Conftantine f , when the rigor of the Roman law with regard to flaves began to relax and Ibften, a mafler was allowed to chaflife his flave with rods and imprifonment, and, if death accidentally enfued, he was guilty of no crime : but if he flruck him with a club or a ftone, and thereby occafioned his death j or if in any other yet groflcr manner " immoderate juo jure utafur, tune reus homicidii fit "
BUT, to proceed. A tilt or tournament, the martial diver- lion of our anceftors, was however an unlawful act ; and fo are boxing and fwordplaying, the fucceeding amufement of their pofterity : and therefore if a knight in the former cafe, or a gla- diator in the latter, be killed, fuch killing is felony of man- llaughter. But, if the king command or permit fuch diverfion, it is laid to be only mifadventure ; for then the act is lawful B . In like manner as, by the laws both of Athens and Rome, he who killed another in the pancratium, or public games, authorized or permitted by the ftate, was not held to be guilty of homicide h . Likewife to whip another's horfe, whereby he runs over a child and kills him, is held to be accidental in the rider, for he has done nothing unlawful ; but manflaughter in the perfon who whipped him, for the act was a trefpafs, and at beft a piece of idlenefs, of inevitably dangerous confequence '. And in general, if death enfues in confequence of any idle, dangerous, and un- lawful fport, as fhooting or cafting ftones in a town, or the barbarous diveriion of cock-throwing, in thefe and iimilar cafes, the flayer is guilty of man-flaughter, and not mifadventure only, for thcfe are unlawful acts k .
2. HOMICIDE mfelf-defence, orje defendendo, upon a fudden affray, is alfo excufable rather than juftifiable, by the Englilh law. This fpecies of felf-defence muft be distinguished from that juft now mentioned, as calculated to hinder the perpetra-
< Cud. I. 9. /. 14. > Hawk. P. C. 73. e i Hal. P. C. 473. i Hawk. P. C. 74. " Ibid. 74. I Hal. P. C. 472. Foft. 261. h Plato, de LL. lit. 7. F/. 9. 2. 7.
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