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§. 4.
Se defendendo
tolerated. |
Homicide upon Necessity.
Also in an Appeal of Felony, if the Appellant and
Appellee do joyn
to try it by battle, and therein one doth kill the other; as the Law doth
allow such trial; so doth it allow the event to be justifiable, as depending
upon the Judgment of God, who giveth Victory according to
Truth. |
Chap. 150.
37 H. 6. 21. |
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So a Man as a Champion in trial upon a Writ of Right,
if he killeth the
other. This is Felony, Plo. 9. b. |
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" If two Men Tilt or Turney in the presence of the
King, or if two
" Masters of Defence, playing their prizes, kill one another; it is not
" Felony. |
Hob. 134. |
§. 5.
Necessity. |
' Necessity of three sorts, sc.
' 1. Of conservation of life, &c.
' 2. Of obedience, as where the Wife stealeth
with her Husband.
' 3. Of the Act of God, or a Stranger. |
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' Yet in these Cases, Necessity priviledgeth in
cases of Homicide only
' when it is inevitable. Bracton. |
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And in Cases of Theft only Quoad jura Privata,
sed non valet contra
Rempublicam. Ba. 32. |
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Also when one Man killeth another in the necessary
defence of himself,
or his, thereby to deliver Himself, his Possessions of his Goods, or some
other Persons, which he is bound to defend from peril, and which cannot
otherwise escape. This is Homicide tolerated upon necessity. |
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§. 6.
For defence
of Person,
House or
Goods. |
' And here the Sword is (as one saith) a Weapon
of defence to keep
' off violence, and the use of it made lawful by the Law of Nature,
' Vim vi, &c. Yet cum moderamine inculpatæ tutelæ,
& pro hac vice
' tantum. |
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To kill an Offender, which shall attempt Feloniously
to murther or
rob me in my Dwelling-house or in or near any High-way, Cart-way,
Horse-way or Foot-way, or that shall attempt Burglary, or Feloniously to
break my Dwelling-house in the night: This is justifiable by
my self,
or by any of my Servants or Company, whom the said evil Doers shall
so attempt to rob or murther; or by any person being in my Dwelling-house,
which the same evil Doer shall attempt so to break by night. |
24 H. 8. 5.
P. Forf. 1.
24 P. 8. c.
H. 5. P.
For. 1.
Hob. p. 96.
Cor, 5, 19.
& 11, 28.
Exod. 22.
2. |
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And this being so found by Verdict upon Trial, we
shall be all discharged
without loss of Life, Land, or Goods, or Pardon, 24 H. 8. cap.
5.
Stamf. de Prærog. 46. |
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To kill a Thief or Murtherer, (sc. one which
goeth about to Rob, or
Murther me) in the defence of my Person, my House and Goods, was no
Felony, but justifiable by the Common Law, before the Statute of 24
H. 8.
cap. 5. (which Statute doth also declare the Law to be so, and doth
enact
it) Stamf. 14. See Co. 5. 91. & 11. 82. Br.
Coron. 100, 102. And yet at
the Common Law there was this difference, sc. That he which
killed a
Thief which would have robbed him upon the High-way, should forfeit
Goods; but he which killed one who would have robbed or murthered
him in his House, should forfeit nothing. Co. 11. 82.
See Exod. cap.
22, 23. |
36 Ass. 12.
F. Cor.
261, 305,
& 330. |
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And if one or more come to burn my House, I, or
any of my Servants
may justifie to shoot forth of my House at them, or may issue forth, and
kill them; for such intent of theirs if Felonious. Br. Coron.
100. |
20 Ass. 22.
Finch. |
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If a Woman kill him that assaileth her to ravish
her: This is justifiable
by the Woman, without any Pardon. Sir Fr. Ba. 34. |
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' And in these Cases, &c. Se Defendendo is
a Plea for him, or her that is
' charged with the Death of another, saying, That they were driven |
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