Homesteads and Exemptions (San Francisco, 1886); P. Bureau,
Le Homestead ou l’Insaisissabilité de la petite propriété foncière
(Paris, 1894), and L. Vacher, Le Homestead aux États-Unis (Paris,
1899). (N. D. M.)
HOMEYER, KARL GUSTAV (1795–1874), German jurist, was born on the 13th of August 1795 at Wolgast in Pomerania. After studying law at the universities of Berlin, Göttingen and Heidelberg (1813–1817), he settled as a Privatdocent, in 1821, at the university of Berlin, where he became ordinary professor of law in 1827. His principal works are his edition of the Sachsenspiegel (in 3 vols., 1827, 3rd ed., 1861, containing also some other important sources of Saxon or Low German law), which is still unsurpassed in accuracy and sagacity of research, and his book on Die Haus- und Hofmarken (1870), in which he has given a history of the use of trade-marks among all the Teutonic nations of Europe, and which is full of important elucidations of the history of law and also contains valuable contributions to the history of art and civilization. In 1850 Homeyer was elected a member of the Berlin Academy of Sciences, in the Transactions of which he published various papers exhibiting profound learning (Über die Heimat, 1852; Genealogie der Handschriften des Sachsenspiegels, 1859; Die Stadtbücher des Mittelalters, 1860; Der Dreissigste, 1864, &c.). He died on the 20th of October 1874.
HOMICIDE (Lat. homicidium), the general and neutral term for the killing of one human being by another. The nature of the responsibility of the slayer to the state and to the relatives of the slain has been one of the chief concerns of all systems of law from the earliest times, and it has been variously considered from the points of view of the sanctity of human life, the interests of the sovereign, the injury to the family of the slain and the moral guilt, i.e. the motives and intentions, of the slayer.
The earliest recorded laws (those of Khammurabi) do not contain any sweeping general provision as to the punishment of homicide. The death penalty is freely imposed but not for homicide. “If a man strike a gentleman’s daughter that she dies, his own daughter is to be put to death, if a poor man’s the slayer pays 12 mina.” In the Mosaic law the general command “Thou shalt not kill” of the Decalogue is in terms absolute. In primitive law homicide, however innocent, subjected the slayer to the lawful vengeance of the kindred of the slain, unless he could make some composition with him. This lex talionis (a life for a life) resulted: (1) in a course of private justice which still survives in the vendetta of Corsica and Albania, and the blood feuds arising out of “difficulties” in the southern and western parts of the United States; (2) in the recognition of sanctuaries and cities of refuge within which the avenger of blood might not penetrate to kill an innocent manslayer; and (3) in the system of wite, bote and wer, by which the life of every man had its assessed price payable to his chief and his next of kin.
It took long to induce the relatives of the slain to appreciate anything beyond the fact of the death of their kinsman or to discriminate between intentional and accidental homicide. By the laws of Khammurabi (206, 208) striking a man in a quarrel without deadly intent but with fatal effect was treated as a matter for compensation according to the rank of the slain. The Pentateuch discriminates between the man “who lieth in wait for” or “cometh presumptuously” on “his neighbour to slay him with guile” (Exodus xxi. 13, 14), and the man “who killeth his neighbour ignorantly whom he hated not in time past” (Deut. xix. 4). But even killing by misadventure exposed the slayer to the avenger of blood. “As a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down a tree and the head slippeth from the helve and lighteth upon his neighbour that he die: he shall flee into one of these cities (of refuge) and live” (Deut. xix. 5).
Under the early laws of Teutonic and Celtic communities the inconveniences of the blood feud were gradually mitigated (see Criminal Law) by the system of wite and wer (or eric), but the blood feud continued long in Friesland and Lower Saxony, and in parts of Switzerland until the 16th century. In England under the Norman system homicide became a plea of the crown, and the rights of the kindred to private vengeance and to compensation were gradually superseded in favour of the right of the king to forfeitures where the homicide amounted to a crime (felony).
Though homicide was thus made a public offence and not a matter for private vengeance, it took long to discriminate between those forms of homicide which should and those which should not be punished.
The terms of act in English law used to describe criminal homicide are murder (mord, meurtre, murdrum), manslaughter and felo de se (or suicide by a person of sound mind).
The original meaning of the word “murder” seems to have been secret homicide,—“Murdrum proprie dicitur mors alicujus occulta cujus interfector ignoratur” (Dialogus de Scaccario i, x.); and Glanville says: Duo sunt genera homicidii, unum est quod dicitur murdrum quod nullo vidente nullo sciente clam perpetratur, ita quod non assignatur clamor popularis (hue and cry), est et aliud homicidium quod diciter simplex homicidium. After the Conquest, and for the protection of the ruling race, a fine (also called murdrum) was levied for the king on the hundred or other district in which a stranger was found dead, if the slayer was not brought to justice and the blood kin of the slain did not present Englishry, there being a presumption (in favour of the Exchequer) that the deceased was a Frenchman. After the assize of Clarendon (1166) the distinction between the killing of Normans and Englishmen gradually evaporated and the term murder came to acquire its present meaning of deliberate as distinct from secret homicide. In 1267 it was provided that the murder fine should not be levied in cases of death by “misadventure” (per infortunium).[1] But at that date and for long afterwards homicide in self-defence or by misadventure or even while of unsound mind involved at the least a forfeiture of goods, and required a pardon. These pardons, and restitution of the goods, became a matter of course, and the judges appear at a later date to have been in the habit of directing an acquittal in such cases. But it was not until 1828 that the innocence of excusable homicide was expressly declared. The rule is now expressed in s. 7 of the Offences against the Person Act 1861: “No punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony.”
The further differentiation between different degrees of criminal homicide was marked by legislation of Henry VIII. (1531) taking away benefit of clergy in the case of “wilful murder with malice prepensed” (aforethought), and that phrase is still the essential element in the definition of “wilful murder,” which is committed “when a person of sound memory and discretion unlawfully killeth any reasonable creature or being and under the king’s peace with malice aforethought either express or implied” (3 Co. Inst. 47). The whole development of the substantive law as to murder rests on judicial rulings as to the meaning of malice prepense coupled with the extrajudicial commentaries of Coke, Hale and Foster; for parliament, though often tempted by bills and codes, has never ventured on a legislative definition. Much discussion has ranged round the phrase “malice aforethought,” and it has undoubtedly been expanded by judicial decision so as to create what is described as “constructive” murder. According to the view of the criminal code commissioners of 1879 (Parl. Pap., 1879, c. 23, 45, p. 23) the term “malice aforethought” is now a common name for all the following states of mind:—
1. An intent, preceding the act, to kill or do grievous bodily harm to the person or to any other person:
2. Knowledge that the act done is likely to produce such consequences, whether coupled with an intention to produce them or not:
3. An intent to commit any felony: or
4. An intent to resist an officer of police in the execution of his duty.
- ↑ See Select Pleas of Crown, 1 (Selden Society Publ.); Pollock and Maitland, Hist. Eng. Law, ii. 458, 476, 478.
