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 HOMICIDE

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HOMICIDE

precisely because of the founded likelihood of its having this fatal result, then in the court of con- science the doer is held to be guilty in spite of his disclaimer of all intention in the matter. Hence, for example, one who fires a shotgun into the public thor- oughfare, whilst protesting that he has no wish to work any mischief, is, nevertheless, obviously to be reproached as a murderer if perchance his bullet has killed anybody.

For the protection of one's own or another's life, limb, chastity, or valuables of some moment, it is agreed on all sides that it is lawful for anyone to repel violence with violence, even to the point of taking away the life of the unjust assailant, provided always that in .so doing the limits of a blameless defence be not exceeded. It is proper to note (1) that the danger apprehended for oneself or another must be actual and even, so to speak, imminent, not merely prospective. Hence, the teaching here propoimded cannot be ad- duceil to justify the use of force for purposes of re- prisal or vengeance by a private individual. This latter is a function belonging to the puljlic authority. (2) No more violence may be employed than is re- quired to safeguard sufficiently the goods already enumerated upon which an imwarranted assault has been made. The right of self-defence so universally attributed does not necessarily presuppose in the aggressor an imputable malice. It is enough that one's life or some other possession comparable with life should be threatened outside of the proper chan- nels of the law. One might, for example, kill a lu- natic, or one crazed with drink, although there is no maUce on their part, if this were the only effective way to head off their onset. St. Thomas is careful to say that even in self-defence it is unlawful to kill an- other directly, that is, to intend immediately the death of that other. His mind is that the formal volition of the .self-defender should entirely be to preserve his own life and repulse the onslaught, whil.st as to the loss of life, which, as a matter of fact, ensues, he keeps himself in a purely permissive attitude. This contention is combated by De Lugo and some others, who believe it to be right to choose expressly the killing of another as the means to self-defence. In conformity with the Thomistic doctrine is the axio- matic utterance that a private individual may never lawfully kill anyone whatever, because in self-de- fence one does not, technically speaking, kill, but only endeavours to stop the trespa.sser. Hence, according to the Angelic Doctor, it would follow that only by due operation of law may a human being ever be directly done to death.

Unlike other instances of damage WTOught, the mur- derer cannot offer an adequate indemnity. For one thing, he cannot restore the life he has destroyed. There is no doubt, however, but that he is obliged to make good whatever expenses may have been in- curred for medical attendance or hospital care, and this to the surviving heirs. He is likewise bound to furnish to the immediate relatives of his victim, such as wife, children, parents, the .sustenance for which they depended on the latter. Should the murderer die before l)eing able to satisfy these claims they pass as a burden to l^e met by the inheritors of his estate. It is not easy to determine what obligation, if any, the slayer has to the creditors of the slain; but it seems equitable to say that he must at least reimburse them whenever it is clear that his aim in the perpetration of the deed of blood was to injure them.

One who has killed another under circumstances that show his act to be a mortal sin whether he directly or only indirectly intended the fatal result, and whether he was the physical or the moral cause, con- tracts the canonical impediment known as irregular- ity. In ancient times many penalties, such as cen- sures and the like, were levelled against those who procured the assassination of others. By this crime

was meant the procedure of those who, by the pay- ment or promise of a reward, explicitly commissioned abandoned men to put others to death. The text of the law denouncing this atrocity directly took cogni- zance of the case in which inhilels were hired to do away with Christians. The excommunication im- posed has since been removed, but other (junishments remain in force. Thus, for example, a criminal of this sort could not invoke in his behalf the right of asylum; if he w'ere a cleric he would he regarded as canonically degraded, and left to the disposition of the secular arm, so that he might be put to death without any actionable violation of the immimity proper to his state. Whether the actual assassin, who carries out the orders of his principal, is to be considered aa included in the provisions of the law, is not certain.

RiCKABY. Ethics and Naluriil jMir (London. 19n.S); InEM, Aquinds Elf/ictts {Ix>ll(lon, l.S9(t): .Slater, Mnnttiil uf MartU Theology (New York, 190S); B.\llerini, OfiUH Thenloiiirum Morale (Prato, 1S99).

Joseph F. Delany.

II. In Civil .Iurisprudencb. — According to its signification in jurisprudence homicide is "the killing of a human being by a human being" (J. F. Stephen, "Digest of the Criminal Law", London and New York, 1S94, 175; Wharton, "The Law of Homicide", 3rd ed., Rochester, N. Y., 1907, 1), and may be "free from legal guilt" (Serjeant Stephen, "New Commen- taries on the Laws of England ", 14thed., London, 1903, IV, 37; Wharton, op. cit., 1). The very ancient Latin language expressed the act of killing a human being by numerous terms, but not by the term homicidium, which came into use at a comparatively late period (T. Mommsen, "Le Droit pdnal Romain'', French tr., Paris, 1907, II, 324-5). That it did not necessarily import the deed of a criminal Horace's allusion to luDiiicidam Hectorem (Epod., xvii, 12) indicates.

Homicide free from legal guilt was by the English law defined as either justifiable or excusable. Of justifiable homicide an instance is afforded by such "unavoidable necessity" as the execution of a crimi- nal "pursuant to the death warrant and in strict conformity to the law" (Wharton, op. cit., 9). Instances of excusable homicide would be killing in self-defence or an accidental killing by a person doing a lawful act without any intention to hurt (Idem, op. cit.). But contrary to the legal doctrine which Sir William Blackstone (Commentaries on the Laws of England, IV, 186) derives from Lord Bacon, modern English law does not seem to admit necessity of self- pre.servation as excuse for killing "an innocent and unoffending neighbour" (Queen vs. Dudley and Stephens, English Law Reports, 14 Queen's Bench Division, 280). Homicide under circumstances ren- dering the act neittier justifiable nor excusable is a crime of the class denominated felonies (Bishop. " New Comment, on Crim. Law ", Chicago, 1892, II, sec. 744). Felonious homicide, when imputed by law to the infirmity of human nature and deemed without malice, is termed manslaughter, being either a voluntary killing "in a sudilcn heat of passion", or an involuntary killing "in the commission of an unlawful act" (Wharton, op. cit., (i). Felonious homicide when accompanied by malice constitutes murder, a crime committeil "where a person of sound memory and discretion unlawfully kills any reason- able creature in being in the peace of the com- monwealth or sovereign with malice prepense or aforethought, either express or implied " (Wharton, op. cit., 2). "The King's peace", Blackstone deems proper to specify, is so comprehensive that to kill "an alien, a. lew or an outlaw" (except an alien enemy in time of war) "is as much murder as to kill the mo.st regular bom Englishman." But he adds that, "to kill a child in its mother's womb is now no murder, but a great misprision" (op. cit., IV, 198).

Murder in its most odious degree, according to