Ch. 14. WRONGS. 187 lord Bacon a entitles it neceflitas culpabilis, and thereby diftinguiflies it from the former necefiity of killing a thief or a malefa&or. For the law intends that the quarrel or affault arofe from fome unknown wrong, or fome provocation, either in word or deed : and fince in quarrels both parties may be, and ufually are, in fome fault; and it fcarce can be tried who was originally in the wrong ; the law will not hold the furvivor intirely guiltlefs. But it is clear, in the other cafe, that where I kill a thief that breaks into my houfe, the original default can never be upon my fide. The law befides may have a farther view, to make the crime of homicide more odious, and to caution men how they venture to kill another upon their own private judgment ; by ordaining, that he who flays his neighbour, without an exprefs warrant from the law fo to do, mall in no cafe be abfolutely free from guilt.
NOR is the law of England fingular in this refpeft. Even the (laughter of enemies required a folemn purgation among the Jews ; which implies that the death of a man, however it hap- pens, will leave fome ftain behind it. And the mofaical law b appointed certain cities of refuge for him " who killed his nejgh- " bour unawares ; as if a man goeth into the wood with his " neighbour to hew wood, and his hand fetcheth a flroke with " the ax to cut down a tree, and the head flippeth from the " helve, and lighteth upon his neighbour that he die, he {hall " flee unto one of thefe cities and live." But it feems he was not held wholly blamelefs, any more than in the Englifh law ; fince the avenger of blood might flay him before he reached his afylum, or if he afterwards flirred out of it till the death of the high prieft. In the imperial law likewife c cafual homicide was excufed, by the indulgence of the emperor figned with his own fign manual, " adnotatione principh :" otherwife the death of a man, however committed, was in . fome degree punifliable. Among the Greeks d homicide by misfortune was expiated by
1 Elcm. 05. c cw 9 ,5 - b Numb. c. 35. and Dcut. c. 19. * Plato de leg. lib, 9. Z 2 voluntary
