Ch. 14. WRONGS. 179 the homicide. If another perfon doth it of his own head, it is held to be murder 5 : even though it be the judge himfelf h . It mult farther be executed, fervato juris ordine ; it mutt purfue the fentence of the court. If an officer beheads one who is adjudged to be hanged, or vice vcrfd, it is murder l : for he is merely mi- nifterial, and therefore only juftified when he acts under the authority and compuliion of the law ; but, if a fheriff changes one kind of death for another, he then acts by his own autho- rity, which extends not to the commitTion of homicide : and, befides, this licence might occailon a very grofs abufe of his power. The king indeed may remit part of a fentence -, as, in the cafe of treafon, all but the beheading : but this is no change no introduction of a new punifhment ; and in the cafe of felony, where the judgment is to be hanged, the king (it hath been faid) cannot legally order even a peer to be beheaded k . But this doc- trine will be more fully confidered in a fubfequent chapter.
AGAIN: in fome cafes homicide is juftifiable, rather by the perrnij/ion, than by the abfolute command, of the law : either for the advancement of public juftice, which without fuch indemnifi- cation would never be carried on with proper vigour ; or, in fuch inflances where it is committed for the prevention of fome atro- cious crime, which cannot othervvife be avoided.
2. HOMICIDES, committed for the advancement of public juf- tice, are j i . Where an officer, in the execution of his office, either in a civil or criminal cafe, kills a perfon that afTaults and refifls him '. 2. If an officer, or any private perfon, attempts to take a man charged with felony, and is refitted ; and, in the endeavour to take him, kills him m . This is of a piece with the old Gothic constitutions, which (Stiernhook informs us n ) " fur em, ft ahter capi non poffet, occidere permit timt" 3. In cafe
t i Hal. P. C. 501. i Hawk. P. C. 70. k 3 Inft. 52. 212. h Dak. Juft. c. 150. i i Hal. P. C. 494. i Hawk. P. C. 71. 1 Finch. L, 31. 3 Inft. S z. i Hal. P. i Hal. P. C. 494. C. 501. Jejure Gatb. L 3. c. 5.
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