his own motion, kill as well an infant as an adult, or if a cart run over him, they ſhall in either caſe be forfeited as deodands[1]; which is grounded upon this additional reaſon, that ſuch misfortunes are in part owing to the negligence of the owner, and therefore he is properly puniſhed by ſuch forfeiture. A like puniſhment is in like caſes inflicted by the moſaical law[2]: "if an ox gore a man that he die, the ox ſhall be ſtoned, and his fleſh ſhall not be eaten." And among the Athenians[3], whatever was the cauſe of a man's death, by falling upon him, was exterminated or caſt out of the dominions of the republic. Where a thing, not in motion, is the occaſion of a man's death, that part only which is the immediate cauſe is forfeited; as if a man be climbing up a wheel, and is killed by falling from it, the wheel alone is a deodand[4]: but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body) but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increaſe the preſſure of the wheel) are forfeited[5]. It matters not whether the owner were concerned in the killing or not, for if a man kills another with my ſword, the ſword is forfeited[6] as an accurſed thing[7]. And therefore, in all indictments for homicide, the inſtrument of death and the value are preſented and found by the grand jury (as, that the ſtroke was given with a certain penknife, value ſixpence) that the king or his grantee may claim the deodand: for it is no deodand, unleſs it be preſented as ſuch by a jury of twelve men[8]. No deodands are due for accidents happening upon the high ſea, that being out of the juriſdiction of the common law: but if a man falls from a boat or
- ↑ Omnia, quae movent ad mortem, ſunt Deo danda. Bracton. l. 3. c. 5.
- ↑ Exod. xxi. 28.
- ↑ Aeſchin. contr. Cteſiph.
- ↑ 1 Hal. P. C. 422.
- ↑ 1 Hawk. P. C. c. 26.
- ↑ A ſimilar rule obtained among the antient Goths. Si quis, me neſciente, quocunque meo telo vel inſtrumento in perniciem ſuam abutatur; vel ex aedibius meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et ſub molendino meo confringatur, ipſe aliqua mulcta plectar; ut in parte infelicitatis meae numeratur, habuiſſe vel aedificaſſe aliquod quo homo periret. Stiernhook de jure Goth. l. 3. c. 4.
- ↑ Dr & St. d. 2. c. 51.
- ↑ 3 Inſt. 57.
