Lord Hale thinks it right also to qualify his rule with this proviso, that while it is the duty of an attacked person first to fly before killing his assailant, yet this flight must not be a feigned flight, as "when fighting-cocks retire to gain advantage." And he admits that if a man is attacked in his own house, then he is not required to fly, because the protection of his house excuses him. 2 One of the emergencies in which the doctrine of selfdefence usually comes into play is where there is some sudden brawl, and a person is attacked with sufficient force and malice to justify or excuse him in giving a fatal blow. This is often called chance medley, which means a casual affray or chaud medley (chaud melle), when the affray gives rise to heat and passion. This was one of the classes of circumstances under which the killing of another was deemed excusable if, after blows on each side the slayer did all he could to decline, but was forced, in self-defence, to kill his adversary in order to save his own life.1 But if the circumstances do not clearly show, that there was immediate danger to the life of the slayer, then he will be guilty of manslaughter. For the very notion of self-defence implies that not only was there no attack in the first instance, but that the occasion was adequate to justify the degree of force that was used to repel force, and that the slaying was avoided in all reasonable ways until the very last.3 And as in cases where manslaughter is committed in circumstances of provocation, it is not very material who first began a fight, so this is immaterial in questions of slaying in self-defence. The important consideration is, whether, when the one party slew the other, the former had done all he could in the circumstances to avoid this extremity, and was under the immediate apprehension that if he did not do so he would himself be killed. Yet our ancient law seems to have agreed with the law of the most ancient of communities in being unable to draw fine distinctions, for it classed killing in self-defence with murder, and treated it at least 1 24 Hen. VIII. c. 5; Staund. P. C. 16; 3 Inst. 55; Kel. 67; 2 Fost. 276; 4 Bl. Com. 184. 4 Fost. 277; 4 Bl. Com. 184; Fost. 275. as prima facie murder, and so requiring some formal pardon.1 A woman defending her honour.—It is the same doctrine of self-defence, that justifies a woman in defending her honour at all hazards. A woman may kiii a man to prevent being ravished, and though Hale said the reason of this was because rape was felony-a reason which would equally apply to all other felonies-a much better reason is this, that the law of civilisation estimates the possession of purity and honour as superior to the life of any man who assails it. It is a question of comparing the intrinsic worth of a valuable possession, the worth of virtue and purity with its negative-the worthlessness of licentiousness and passion. If the sacrifice of the assailant is necessary to the former, the law supplies no rule by which that sacrifice can be shown to be either criminal or blamable; and no court would criticise very nicely the reasonableness of drawing the limit of forbearance too soon. Killing in defence of wife, child, relation. Not only does the law excuse one who slays another in defence of his own life, but on the same principle it excuses one, who in like manner acts in defence of the life of a wife, husband, or child, master or servant, there being sufficient identity of interest and feeling to make the act of one the act of the other; and though the law takes too frequently only a selfish view of human nature, in this instance the generosity arising from close ties of affection or duty is viewed as entering legitimately into the motive of action. As regards, however, the relation of master and servant, especially considering the gradual tendency of that relation to become less close, the circumstances would require more need of justification.3 Husband killing an adulterer.-Whether a husband is justified in killing an adulterer, and under what circumstances, has attracted the attention of all legislators from the earliest times. It seems to have been always deemed a justifiable act for a husband to kill an adulterer flagrante 1 The exemption from punishment of a person who slew another in self-defence or by misfortune was shown by a pardon.—2 Ed. III., St. North. c. 2. 2 1 Hale, P. C. 484; 4 Bl. Com, 184. 3 See ante, p. 296. VOL. I. A A 3 delicto. The Greeks excused one who slew the debaucher of a wife, mother, or daughter.1 Plato allowed the woman, her father, brother, or son, to kill her ravisher.2 In Rome this was a good excuse also, and there at one time the husband might kill the adulterous wife also; though at a later period she was only whipped and sent to a convent.4 In Tonquin the husband might kill the wife as well as the adulterer, or if she was tried, she was condemned to be trodden to death by an elephant.5 The punishments for adultery in nearly all ancient, and especially Eastern, countries, have been merciless. The old Welsh law was from a like motive most indulgent to the wife of an adulterer; for she was excused for killing the husband's concubine with her hands, whenever they met. This is a subject on which no definite rule can be laid down, though Hale and older writers have done so very broadly. One can easily see that while a natural and uncontrollable resentment may impel a husband in some circumstances to kill the adulterer, there may be many, and perhaps a majority, of cases, where such a justification could not be urged or defended. And nothing but the common sense and experience of juries, assisted by a judge and applied to each individual situation, can adequately solve this point and draw the line between murder and manslaughter.8 The provocation of a husband on a view of this offence, flagrante delicto, has been held to negative the malice and reduce the crime to manslaughter, but not to justify the act further. And a like view was acted on where a parent slew one detected in a kindred offence with a child:10 but mere suspicion of adultery, though well grounded, will not constitute any adequate provocation, and it will be murder, should death be so caused.11 And, as civilisation advances, and remedies of divorce become improved, 2 De Leg. b. ix. 3 Dion. b. ii. 25; 59 Pink. Voy. 723. 6 See 7 Dimet. Code, b. ii. c. 8; Gwent. C. b. ii. c. 39; 1 Demosth. Aristoc. Suet. Tib. 4 Nov. 134, c. 10. post, Ch. viii. Welsh Laws, b. iv. c. 4. 8 Fost. 296; R. v Kelly, 2 C. & K. 814. that jealousy was the rage of a man, and invasion of property.-17 St. Tr. 70. HOLT, C. J., said, indeed, adultery was the highest 9 R. v Manning, T. Raym. 212; R. v Maddy, 1 Vent. 158; Jones, 150. 10 R. Fisher, 8 C. & P. 182; R. v Royley, Cro. Jac. 296; 1 Vent. 159. 11 R. v Kelly, 2 C. & K. 814. there is less justification than ever of this leniency in the law towards such an outbreak of ungovernable fury in the circumstances described. Killing in defence of exclusive possession of property.Not only may a man lawfully slay another in defence of his own life or that of a near relative, but he may often do so in the course of the defence of his own exclusive possession of property, if such an extremity is necessary for the protection of his own life also, though perhaps in a secondary sense. The foundation of this right is the rule, that he, who is entitled by law to the possession, and is actually in possession, can turn off all trespassers or strangers who come on the property without permission. If they refuse to quit on request, no matter whether the request be courteous or uncourteous, be generous or harsh, with or without just cause, the trespasser may be pushed off by main force; and any resistance becomes illegal, and the trespasser is in the wrong in delaying from the moment that the request is made known. If this were not the law, every man's house would cease to be his castle, that privacy which is the main object of property would be destroyed, and a sense of insecurity would be introduced which would sap the springs of industry and order. Yet there ought to be some limit to the mere right of defending property at all hazards. This subject has exercised the skill and care of legislators in ancient times. The Jewish law held it lawful to slay a thief found in the night. The law of the Twelve Tables allowed it also, but required the slayer to call aloud on the occasion.2 Yet both laws seemed to agree, that the thief was only to be slain in the day-time, if he defended himself with a weapon; and the Roman law required also the slayer in that case to call aloud.3 The laws of Solon and Plato both permitted an owner to slay a thief in the night-time, but in the day-time only if there was accompanying violence, as the law could sufficiently redress any wrong without requiring this extreme penalty to be inflicted. This notion of calling aloud was intended to be a warning; and in Anglo-Saxon times, if a man deviated 2 Dig. ix. 2, 4; Macrob. Sat. b. i. c. 4. 1 Exod. xxii. 2. 3 Exod. xxii. 3; Dig. ix. 2, 3. Plato, Leg. b. ix; Diod. Sic. 4 Demosth, adv. Timocrat. ; from the highway, he was bound to sound a horn, otherwise he might be treated as a robber.1 Yet it seems to have been considered doubtful, whether our common law held it lawful to kill a thief or murderer.2 The mode of dealing with trespassers on property has long been tolerably well settled. Though a trespasser will not on request leave one's house or land, and though the force used is insufficient to overcome his resistance, it does not follow, that the owner or rightful possessor can put such trespasser to death. In order to justify this, the object and manner of the trespasser's invasion must be such as to lead to the immediate apprehension, that the owner will himself be killed, or ousted of his possession, and prevented from using his property if he do not despatch the adversary. If a man's house is broken into at night, the worst intentions may fairly be imputed to the burglar or housebreaker. On the other hand, if a man trespass in daylight, without permission, or even against permission, and with or without any frivolous excuse, it would be altogether illegal in the owner to shoot or even to assault him with violence. If there is no show of violence on the part of the intruder, if there is nothing beyond a mere intention to annoy, the proper and only safe remedy is that which the law affords by an action of trespass in a court of law. Between these extremes, however, a great variety of circumstances exists, and it will be chiefly owing to the conduct of the intruder, and the intention to eject the owner, or rob or assault him, whether the extremity resorted to by the owner can be justified.3 The law is extremely lenient in viewing the resentment of those who seek to preserve inviolate the security of their own homes, or to keep possession of their own property, real or personal. And if a trespasser break into a house, even in the day-time, with a felonious intent, it is said he may be killed without blame.5 Yet all these extreme acts ought to be carefully examined to see how far the circumstances reasonably led up to them. A statute of Henry VIII., indeed, expressly exempted the person from 3 Child's 4 3 Ed. III. 1 Anc. Laws, K. With. 2 Barringt. Stat. 111. Case, 2 Lew. 214; Hinchcliffe's Case, 1 Lew. 161. Coron. 35; Crompt. 27 b.; 1 Hale, 473, 486; 1 East, P. C. c. 5, $56. 5 1 Hale, 488. |