Chapter 26

13Stephen,op. cit.ii. 108. So, also, according to Bacon’sMaxims of the Law, reg. 5 (Works, vii. 344), homicide is in such a case justifiable.

14Reg.v.Dudley and Stephens, inLaw Reports, Cases determined in the Queen’s Bench Division, xiv. 273sqq.

15Ibid.xiv. 276.

16Bacon,Maxims of the Law, reg. 5 (Works, vii. 343).

17Reg.v.Dudley and Stephens, inLaw Reports, Queen’s Bench Division, xiv. 286.

18Hale,op. cit.i. 54.

19Britton, i. 11, vol. i. 42.

20Westgöta-Lagen II.þiufua bolker, 14, p. 164sq.

21Gratian,Decretum, iii. 1. 11.

22Ibid.iii. 5. 26.

23St. Matthew, xii. 1sqq.

According to Muhammedan law, the hand is not to be cut off for stealing any article of food that is quickly perishable, because it may have been taken to supply the immediate demands of hunger.24We are told that “no Chinese magistrate would be found to pass sentence upon a man who stole food under stress of hunger.”25In ancient Peru, according to Herrera, “he that robb’d without need was banish’d to the Mountains Andes, never to return without the Inga’s leave, and if worth it paid the value of what he had taken. He that for want stole eatables only was reprov’d, and receiv’d no other punishment, but enjoyn’d to work, and threatened, that if he did so again, he should be chastiz’d by carrying a stone on his back, which was very disgraceful.”26We even hear of savages who regard “compulsion by necessity” as a ground of extenuation. Among the West African Fjort robbery of plantations, committed in a state of great hunger, is exempt from punishment in case there is no deception or secrecy in the matter; however, payment for damage done is expected.27Cook says of the Tahitians:—“Those who steal clothes or arms, are commonly put to death, either by hanging or drowning in the sea; but those who steal provisions are bastinadoed. By this practice they wisely vary the punishment of the same crime, when committed from different motives.”28

24Lane,Manners and Customs of the Modern Egyptians, p. 121.

25Giles,Strange Stories from a Chinese Studio, ii. 217, n. 5.

26Herrera,General History of the West Indies, iv. 337.

27Dennett, inJour. African Society, i. 276.

28Cook,Journal of a Voyage round the World, p. 41sq.

A special kind of self-preservation is self-defence. Here the ground of justification is not merely the motive of the agent, but also the wrongness or criminality of the act which he tries to prevent. Hence the right of inflicting injuries as a necessary means of self-preservation has been more generally recognised in the case of self-defence than in other cases of “compulsion by necessity.” “Vim vi repellere” was regarded by the ancients as a natural right,29as a law “non scripta, sed nata”;30and the same view was taken by the Canonist.31Even in the savage world self-defence and killing in self-defence are not infrequently justified by custom.32But in other instances the influence of the external event makes itself felt also in the case of self-defence. Among the Fjort, though a person who kills another in self-defence is exempt from punishment, he is expected to pay damages.33Among the Hottentots self-defence is regarded as a mitigating circumstance, but not as an excuse in the full sense of the word.34Among other peoples it is not considered at all.35Among the ancient Teutons a person who committed homicide in self-defence had to paywer;36and in Germany such a person seems to have been subject to punishment still in the later Middle Ages.37In England, in the thirteenth century, he was considered to deserve royal pardon, but he also needed it.38

29Digesta, xliii. 16. i. 27: “Vim vi repellere licere Cassius scribit idque ius natura comparatur.”

30Cicero,Pro Milone, 4 (10).

31Gratian,Decretum, i. 1. 7.

32Merker, quoted by Kohler, inZeitschr. f. vergl. Rechtswiss.xv. 64 (Wadshagga). Lang, in Steinmetz,Rechtsverhältnisse, p. 257 (Washambala).

33Dennett, inJour. African Society, i. 276.

34Kohler, inZeitschr. f. vergl. Rechtswiss.xv. 353.

35Steinmetz,Rechtsverhältnisse, p. 50 (Banaka and Bapuku). Tellier,ibid.p. 176 (Kreis Kita). Marx,ibid.p. 357 (Amahlubi). Senfft,ibid.p. 450 (Marshall Islanders).

36Geyer,Lehre von der Nothwehr, p. 88sqq.Trummer,Vorträge über Tortur, &c.i. 430. Stemann,Den danske Retshistorie indtil Christian V.’s Lov, p. 659.Cf.Leges Henrici I.lxxx. 7; lxxxvii. 6.

37Trummer,op. cit.i. 428sqq.von Feuerbach-Mittermaier,Lehrbuch des Peinlichen Rechts, p. 64. Brunner observes (Deutsche Rechtsgeschichte, ii. 630), “Nicht das Benehmen des Getöteten war die causa des Todschlags, sondern nur die feindselige Absicht des Todschlagers.”

38Bracton,De Legibus et Consuetudinibus Angliæ, fol. 132 b, vol. ii. 366sqq.Pollock and Maitland,History of English Law before the Time of Edward I.ii. 574.

In self-defence there should of course be a proportion between the injury which the aggressor intended to inflict and the injury inflicted on him by the person attacked. The most widely-recognised ground on which life is allowed to be taken in self-defence is danger of death. But it is not the exclusive ground. Among the Wakamba “a thief entering a village at night can be killed”; though, if he is, the incident generally gives rise to a blood-feud between his family and the family of the slayer.39In Uganda “there is no penalty for killing a thief who enters an enclosure at night”;40and among various peoples at higher stages of culture we likewise find the provision that a nocturnal thief or house-breaker may be killed with impunity, though a diurnal thief may not.41This law, however, seems to have been due not so much to the fact that by night the proprietor had less chance of recovering his property, as to the greater danger to which he was personally exposed.42The Roman Law of the Twelve Tables allows the diurnal thief also to be killed, in case he defends himself with a weapon;43and, as regards the nocturnal thief, Ulpian expressly says that the owner of the property is justified in killing him only if he cannot spare the life of the thief without peril to himself.44The same rule was laid down by Bracton45and by Grotius. The latter observes, “No one ought to be slain directly for the sake of mere things, which would be done if I were to kill an unarmed flying thief with a missile, and so recover my goods: but if I am myself in danger of life, then I may repel the danger even with danger to the life of another; nor does this cease to hold, however I have come into that danger, whether by trying to retain my property, or torecover it, or to capture the thief; for in all these cases I am acting lawfully according to my right.”46

39Decle,Three Years in Savage Africa, p. 488.

40Ashe,Two Kings of Uganda, p. 294.

41Ta Tsing Leu Lee, sec. cclxxvii. p. 297 (Chinese).Exodus, xxii. 2sq.Lex Duodecim Tabularum, viii. 11sq.Plato,Leges, ix. 874.Lex Baiuwariorum, ix. (viii.) 5. Du Boys,Histoire du droit criminel de l’Espagne, p. 288 (Spanish Partidas).

42Cf.Gregory IX.Decretales, v. 12. 3;Mishna, fol. 72, quoted by Rabbinowicz,Législation criminelle du Talmud, p. 122.

43Lex Duodecim Tabularum, viii. 12. Cicero,Pro Milone, 3 (9).

44Digesta, xlviii. 8. 9.

45Bracton,op. cit.fol. 144 b, vol. ii. 464sq.

46Grotius,De jure belli et pacis, ii. 1. 12. 1.

According to the law of England, a woman is justified in killing one who attempts to ravish her; and so also the husband or father may kill a man who attempts a rape on his wife or daughter, if she do not consent.47We meet with similar provisions in many other laws, modern and ancient.48St. Augustine says that the law allows the killing of a ravisher of chastity, either before or after the act, in the same manner as it permits a person to kill a highwayman who makes an attempt upon his life.49According to the Talmud, it is permissible to kill a would-be criminal, in order to prevent the commission of either murder or adultery “to save an innocent man’s life, or a woman’s honour”; but when the crime has already been accomplished, the criminal cannot be thus disposed of.50

47Harris,op. cit.p. 145.

48Erskine-Rankine,Principles of the Law of Scotland, p. 558.Ottoman Penal Code, art. 186. Nordström,Bidrag till den svenska samhälls-författningens historia, ii. 349 (ancient Swedish laws). Plato,Leges, ix. 874.

49St. Augustine,De libero arbitrio, i. 5 (Migne,Patrologiæ cursus, xxxii. 1227).

50Benny,op. cit.p. 125. Rabbinowicz,op. cit.p. 124.

Among many peoples who in other cases prohibit self-redress, an adulterer and an adulteress may be put to death by the aggrieved husband, especially if they be caughtflagrante delicto. Such a custom prevails in various uncivilised societies where justice is generally administered by a council of elders or the chief.51Among the ancientPeruvians “a man killing his wife for adultery was free; but if for any other fault he died for it, unless he were a man in dignity, and then some other penalty was inflicted.”52According to Chinese penal law, “when a principal or inferior wife is discovered by her husband in the act of adultery, if such husband at the very time that he discovers kills the adulterer, or adulteress, or both, he shall not be punishable.”53By the law of Nepal, the Parbattia husband retains the privilege of avenging, with his own hand, the violation of his marriage bed, and anyone, save a learned Brahman or a helpless boy, who instead of using his own sword, should appeal to the courts, would be covered with eternal disgrace.54In all purely Moslem nations custom “overwhelms with ignominy the husband or son of an adulteress who survives the discovery of her sin; he is taboo’d by society; he becomes a laughing-stock to the vulgar, and a disgrace to his family and friends.”55According to the ‘Lex Julia de adulteriis,’ a Roman father had a right to kill both his married daughter and her accomplice if she was taken in adultery either in his house or in her husband’s, provided that both of them were killed, and that it was done at once. The husband, on the other hand, had no such right as to his wife in any case, and no such right as to her accomplice unless he was an infamous person or a slave, taken, not in his father-in-law’s house, but in his own.56However, it seems that in more ancient times the husband was entitled to kill an adulterous wife;57and his right of self-redress in the case of adultery was again somewhat extended by Justinian beyond the very narrow limits set down by the Lex Julia.58According to an Athenian law, “if one man shall kill another … after catching him with his wife, or with his mother, or with asister, or with a daughter, or with a concubine whom he keeps to beget free-born children, he shall not go into exile for homicide on such account.”59Ancient Teutonic law allowed a husband to kill both his unfaithful wife and the adulterer, if he caught them in the act;60according to the Laws of Alfred, an adulterer takenflagrante delictoby the woman’s lawful husband, father, brother, or son, might be killed without risk of blood-feud.61In the thirteenth century, however, there are already signs that, in England, the outraged husband who found his wife in the act of adultery might no longer slay the guilty pair or either of them, although he might emasculate the adulterer.62The present law treats the killing of an adulterer taken in the act in the same way as homicide committed in a quarrel; by slaying him, the husband is guilty of manslaughter only, though, if the killing were deliberate and took place in revenge after the fact, the crime would be murder. This seems to be the only case in English law in which provocation, other than by actual blows, is considered sufficient to reduce homicide to manslaughter, if the killing be effected by a deadly weapon.63There are corresponding provisions in other modern laws.64As a rule, flagrant adultery does not justify homicide, but serves as an extenuating circumstance.65But according to the French Code Pénal, “dans le cas d’adultère … le meurtre commis par l’époux sur son épouse, ainsi que sur le complice, à l’instant où il les surprend en flagrant délit dans la maison conjugale, est excusable.”66And in Russia, though the law does not exempt from punishment ahusband who thus avenges himself, the jury show great indulgence to him.67

51Dalton,Descriptive Ethnology of Bengal, p. 45; Stewart, inJour. As. Soc. Bengal, xxiv. 628 (Kukis). Macpherson,Memorials of Service in India, p. 83; Hunter,Annals of Rural Bengal, iii. 76 (Kandhs). Anderson,Mandalay to Momien, p. 140 (Kakhyens). MacMahon,Far Cathay and Farther India, p. 273 (Indo-Burmese border tribes). Crawfurd,History of the Indian Archipelago, iii. 130. von Brenner,Besuch bei den Kannibalen Sumatras, pp. 211, 213. Modigliani,Viaggio a Nías, p. 495. Dorsey, ‘Omaha Sociology,’ inAnn. Rep. Bur. Ethn.iii. 364. Dyveyrier,Exploration du Sahara, p. 429 (Touareg). Barrow,Travels into the Interior of Southern Africa, i. 207 (Kafirs). Among the Gaika tribe of the Kafirs, however, “a man is fined for murder, if he kills an adulterer or adulteress in the act, although he be the husband of the adulteress” (Maclean,Compendium of Kafir Laws and Customs, p. 111). Among the Wakamba, “if a man is caught in adultery at night, the husband has a right to kill him; but if the injured man thus takes the law into his own hands in the daytime, he is dealt with as a murderer” (Decle,op. cit.p. 487).

52Herrera,op. cit.iv. 338.

53Ta Tsing Leu Lee, sec. cclxxxv. p. 307.

54Hodgson,Miscellaneous Essays, ii. 235, 236, 272.

55Burton,Sind Revisited, ii. 54sq.

56Digesta, xlviii. 5. 21sq.

57Gellius,Noctes Atticæ, x. 23. 5.Cf.Mommsen,Römisches Strafrecht, p. 625.

58Novellæ, cxvii. 15.

59Demosthenes,Contra Aristocratem, 53, p. 637.

60Wilda,Strafrecht der Germanen, p. 823. Nordström,op. cit.ii. 62sq.Stemann,op. cit.p. 325.

61Laws of Alfred, ii. 42.

62Pollock and Maitland,op. cit.ii. 484. The same right is granted by a Spanish mediæval law to a father, or a husband, who finds a man having illegitimate sexual intercourse with his daughter, or wife (Du Boys,Histoire du droit criminel de l’Espagne, p. 93).

63Hale,op. cit.i. 486. Harris,op. cit.p. 145. Cherry,Lectures on the Growth of Criminal Law, p. 82sq.

64ItalianCodice Penale, art. 377. SpanishCódigo Penal reformado, art. 438.Ottoman Penal Code, art. 188.

65Günther,Idee der Wiedervergeltung, iii. 233sqq.

66Code Pénal, art. 324.

67Foinitzki,loc. cit.p. 548.

Whilst the law referring to self-defence has gradually become more liberal, the law referring to self-redress in the case of adultery has thus, generally speaking, become more severe. The reason for this is obvious. A husband who slays his unfaithful wife or her accomplice does not defend, but avenges himself; and it is to be expected that a society in which punishment has only just succeeded revenge should still admit, or tolerate, revenge in extreme cases. The privilege granted to the outraged husband is not the sole survival of the old system of self-redress lingering on under the new conditions. According to Kafir custom or law, the relatives of a murdered man become liable only to a very light fine if they kill the murderer.68The ancient Teutons, at a time when their laws already prohibited private revenge, did not look upon an avenger of blood in the same light as an ordinary manslayer;69and even the Church recognised the distinction.70Some of the ancient Swedish laws entirely excused homicide committed in revenge immediately after the crime.71According to the Östgöta-Lag, an incendiary taken in flagrancy might be at once burnt in the fire,72and ancient Norwegian law permitted the slaying of a thief caught in the act.73In the Laws of Ine there is an indication that a thief’s fate was at the discretion of his captor,74and a law of Æthelstan implies that the natural and proper course as to thieves was to kill them.75In the Laws of King Wihtræd it is said, “If any one slay a layman while thieving; let him lie without ‘wergeld.’”76So also, according to Javanese law, if a thief be caught in the act it is lawful to put him to death.77For our presentpurpose it is important to note that all such cases imply a recognition of the principle that an act committed on extreme provocation requires special consideration. To declare that an adulterer or adulteress caught in flagrancy, or a manifest thief, may be slain with impunity, is a concession to human passions, which are naturally more easily aroused by the sight of an act than by the mere knowledge of its commission. It was for a similar reason that the Law of the Twelve Tables punishedfurtum manifestummuch more heavily thanfurtum nec manifestum;78and that the Laws of Alfred imposed death as the penalty for fighting in the King’s hall if the offender was taken in the act, whereas he was allowed to pay for himself if he escaped and was subsequently apprehended.79

68Maclean,op. cit.p. 143.Cf., however,ibid.p. 110.

69Wilda,op. cit.p. 562. Stemann,op. cit.p. 582sq.

70Wilda,op. cit.pp. 180, 565. Labbe-Mansi,Sacrorum Conciliorum collectio, xii. 289.

71Nordström,op. cit.ii. 414sq.

72Ibid.ii. 416.

73Wilda,op. cit.p. 889.

74Laws of Ine, 12.Cf.Stephen,op. cit.i. 62.

75Laws of Æthelstan, iv. 4.

76Laws of Wihtræd, 25.

77Crawfurd,op. cit.iii. 115.

78Institutiones, iv. 1. 5.

79Laws of Alfred, ii. 7.

The difference between an injury which a person inflicts deliberately, in cold blood, and one which he inflicts in the heat of the moment, under the disturbance of great excitement caused by a wrong done to himself, has been widely recognised. There are instances reported of savages who distinguish between murder and manslaughter. And the laws of all civilised nations agree in regarding, on certain conditions, passion aroused by provocation as a mitigating circumstance at the commission of a crime.

The Australian Narrinyeri, as we have seen, have a tribunal, calledtendi, consisting of the elders of the clan, to which all offenders are brought for trial. “In case of the slaying by a person or persons of one clan of the member of another clan in time of peace, the fellow-clansmen of the murdered man will send to the friends of the murderer and invite them to bring him to trial before the united tendies. If, after full inquiry, he is found to have committed the crime, he will be punished according to the degree of guilt. If it were a case of murder, with malice aforethought, he would be handed over to his own clan to be put to death by spearing. If it should be what we call manslaughter, he would receive a good thrashing, or be banished from his clan, or compelled to go to his mother’srelations.”80In the Pelew Islands, if two natives are quarrelling, and the one says to the other, “Your wife is bad,” the insulted party is entitled to chastise the provoker with a stone, and is not held liable even if the latter should die in consequence.81The Eastern Central Africans “are aware of the difference between murder and homicide,” even though the punishment of the two crimes is often the same.82Among the Kandhs only slight compensation is awarded “for wounds, however serious, given under circumstances of extreme provocation.”83“Valdeyak, or manslaughter,” says Georgi, “is not capital among the Tungusians, when it has been occasioned by some antecedent quarrel. The slayer is however whipped, and obliged to maintain the family of the deceased: he undergoes no reproaches on account of the affair; but on the contrary is considered as a brave and courageous man for it.”84

80Taplin, ‘Narrinyeri,’ in Woods,Native Tribes of South Australia, p. 34sq.

81Kubary, ‘Die Palau-Inseln,’ inJournal des Museum Godeffroy, iv. 43sq.

82Macdonald,Africana, i. 172.

83Macpherson,op. cit.p. 82.

84Georgi,Russia, iii. 83.Cf.also Turner, ‘Ethnology of the Ungava District,’ inAnn. Rep. Bur. Ethn.xi. 186.

Among the ancient Peruvians, “when one killed another in a quarrel, the first thing enquired into was, who had been the aggressor; if the dead man, then the punishment was slight, at the will of the Inga; but if the surviver had given the provocation, his penalty was death, or at least perpetual banishment to the Andes, there to work in the Inga’s fields of corn, which was like sending him to the galeys. A murderer was immediately publickly put to death, tho’ he were a man of quality.”85Among the Mayas of Yucatan and Nicaragua, in case of great provocation or absence of malice, homicide was atoned by the payment of a fine.86

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