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How is the Punishment to be for Homicide in
self-defence by a man taken by the Husband in Adultery?
On the one hand — Self-defence in Robbery,
Housebreaking &c is and must be Murder - - look over
Look over the Catalogue of Crimes, & lay
down the Punishment of Self-defence in
each.
It makes a difference whether the attempt
in repulse of which the Homicide was committed
was an attempt to apprehend or
an attempt to kill.
On the other hand, the Punishment of Murder
on a man whose life is attacked, would signify
nothing: for if he is governed by the Law he
loses his life, & that immediately; & certainly & if he is not
governed by the Law & he does can but lose his
life: & that at a distant time.
If a person who is the object of a Crime
kills the Criminal, the presumption ought always
to be that it was in the attempt to apprehend —
Where the Crime is such as draws
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with it a severe punishment, the only chance
for apprehending may lie to in disabling: & the
means that may be at hand for disabling are
most probably such as are equally as apt to end
in death. It ought to be deemed an
attempt to kill, or in this case only,
when the Criminal is already to all appearance in
his power.
Where the bodily strength of the party attacked
is manifestly inferior to that of the Criminal
the only apparent chance the former has for apprehending
the latter is by disabling him:
the case is the same if the Criminal
has any deadly weapons in his hands
I am 5 foot high & of a slender make.
I stout stick in my hand, and I have a sword by my side. am attacked by a foe highway man who
is 6 foot and sturdy in proportion — For I
wish to apprehend him - I have a stout stick in my hand, & a sword by my side What am I
to do? To fling away my stick & seize
him by the Collar, would be madness. Am
I then to use my stick or my sword? Either.
If my the stick will do, so much the better —
There is less danger of his being killed by such
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an application of it as will disable him, then
by my sword — But perhaps I may think
it has not weight enough to do the business — or myself
not force enough to give it velocity —
and I must determine in the compass of
an instant, with my fears fears for my adviser —
It is therefore in vain to think of applying
punishment for the sake of determining
my choice —
It is Murder tho' within the day if after
reconciliation or even a remission an intermission of wrath declared expressly by words or
implicitly by behaviour —
Ought it so to be?
The text of Scripture "Let not the Sun go
down upon thy wrath" may perhaps afford
a useful rule in this behalf —
Where a man has slept upon the [affront] provocation
it may seem to indicate a malignity
of disposition that is radical & incurable
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It is to be remember'd that the true consideration
for determining the magnitude that the provocation
shall have for it to be allowed as
an excuse or an extenuation, is, whether it
is likely that the punishment shall prevail
against it — to what degree is it probable Now there are cases in which
this prob
Now there are cases in which this probability
with respect to provocations of a certain
kind shall be different in different countries —
different for example In Spain + + at least in what Spain was once and England with respect
to the provocation of Adultery.
In England it is very probable, and for it seldom
happens otherwise, that the punishment even
for Manslaughter (much more it might be said for Murder
if it were generally known which it is that attaches
in the case) that the punishment for Manslaughter
will prevail in the breast of a Husband, who
has caught his wife in the act of Adultery
with a man, above over the sense of the provocation;
so as to prevent his revenging himself
by putting either of them to death — The Englishman,
according to his rank, his strength, his
HOMICIDE. [BR][12]
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