[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: