Homicide is excusable, when a man is involuntarily placed in such a situation that he is under the necessity of killing another in order to save his own life ; as where, in a shipwreck, A pushes B from a plank which can save one only.
Homicide is not criminal, when it occurs in the practice of any lawful sport or exercise with weapons not of a deadly nature, and without intent to do bodily harm, and where no unfair advantage is intended or taken. But it amounts to manslaughter where weapons are used, the use of which is attended with probable danger; or where, in friendly contest, without the use of such weapons, death results from any unfair advantage taken, either as regards the nature of the instru ment, the mode of using it, the want of due warning given previously to violence used, or from any want of due caution. Tournaments, though a sport in which deadly weapons were used, yet, being con sidered a useful training to arms, were lawful if held with the consent of the king. In case of death, therefore, in the course of one of these exhibitions, the criminality of the act appears to have depended upon the royal licence for the holding of the tournament. [ToenNemEeT.] The statute of 9 Geo. IV., c. 31, a. 3, enacts, that every person convicted of murder, or of being accessory before the fact to murder, shall suffer death ; and that every accessory after the fact to murder, shall be liable, at the discretion of the court, to be transported for life, or to be imprisoned, with or without hard labour, for any term not exceeding four years. Penal servitude is now substituted for trans
portation. By an act passed in 1752 (25 Geo. II., cap. 37), the bodies of persons executed for murder were directed to be delivered to surgeons to be dissected, or to be hanged in chains. The 2 & 3 Wm. IV., a 75, required that such persons should be hung in chains, or buried within the precincts of the prison. The 4 and 5 Wm. I V., c. 26, a. 1, took away the former part of the alternative, and the mode of burial is the only circumstance which distinguishes sentences upon a conviction for murder from those pronounced in other capital cases. Formerly the murder of a bishop, abbot, or prior, by a person owing him canonical obedience, of a master or mistress by a servant, or of a husband by his wife, was denominated petty treason, and punished with greater severity than other murders. The party was drawn to the place of execution ; and if the offender was a woman, burning was, as in the case of high treason, for hanging ; but by the 9 Geo. IV., c. 31, s. 2, petty treason in to be treated as murder only.
The offence of manslaughter is now punishable with penal servitude for life, or for a term of years, or with imprisonment, with or without hard labour, not exceeding four years, or with fine. (Foster ; East; Fourth Report of Criminal-Law Commissioners.)