FOOTNOTE:

[1] In 1901 it was provided that the ten years should date from the

segregation of the lands from the public domain.

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, Gottingen 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 (_Uber die Heimat_, 1852; _Genealogie der

Handschriften des Sachsenspiegels_, 1859; _Die Stadtbucher 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 1/2 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:

Encyclopaedia Britannica, 11th Edition, "Home, Daniel" to "Hortensius, Quintus" Volume 13, Slice 6 · 第 17 / 58 题