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.24 We are told that “no Chinese magistrate would be found to pass sentence upon a man who stole food under stress of hunger.”25 In 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.”26 We 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.27 Cook 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

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,29 as a law “non scripta, sed nata”;30 and the same view was taken by the Canonist.31 Even in the savage world self-defence and killing in self-defence are not infrequently justified by custom.32 But 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.33 Among the Hottentots self-defence is regarded as a mitigating circumstance, but not as an excuse in the full sense of the word.34 Among other peoples it is not considered at all.35 Among the ancient Teutons a person who committed homicide in self-defence had to pay wer;36 and in Germany such a person seems to have been subject to punishment still in the later Middle Ages.37 In England, in the thirteenth century, he was considered to deserve royal pardon, but he also needed it.38

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.39 In Uganda “there is no penalty for killing a thief who enters an enclosure at night”;40 and 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.41 This 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.42 The Roman Law of the Twelve Tables allows the diurnal thief also to be killed, in case he defends himself with a weapon;43 and, 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.44 The same rule was laid down by Bracton45 and 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 to recover it, or to capture the thief; for in all these cases I am acting lawfully according to my right.”46

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.47 We meet with similar provisions in many other laws, modern and ancient.48 St. 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.49 According 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

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 caught flagrante delicto. Such a custom prevails in various uncivilised societies where justice is generally administered by a council of elders or the chief.51 Among the ancient Peruvians “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.”52 According 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.”53 By 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.54 In 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.”55 According 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.56 However, it seems that in more ancient times the husband was entitled to kill an adulterous wife;57 and 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.58 According to an Athenian law, “if one man shall kill another … after catching him with his wife, or with his mother, or with a sister, 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.”59 Ancient Teutonic law allowed a husband to kill both his unfaithful wife and the adulterer, if he caught them in the act;60 according to the Laws of Alfred, an adulterer taken flagrante delicto by the woman’s lawful husband, father, brother, or son, might be killed without risk of blood-feud.61 In 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.62 The 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.63 There are corresponding provisions in other modern laws.64 As a rule, flagrant adultery does not justify homicide, but serves as an extenuating circumstance.65 But 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.”66 And in Russia, though the law does not exempt from punishment a husband who thus avenges himself, the jury show great indulgence to him.67

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.68 The 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;69 and even the Church recognised the distinction.70 Some of the ancient Swedish laws entirely excused homicide committed in revenge immediately after the crime.71 According to the Östgöta-Lag, an incendiary taken in flagrancy might be at once burnt in the fire,72 and ancient Norwegian law permitted the slaying of a thief caught in the act.73 In the Laws of Ine there is an indication that a thief’s fate was at the discretion of his captor,74 and a law of Æthelstan implies that the natural and proper course as to thieves was to kill them.75 In the Laws of King Wihtræd it is said, “If any one slay a layman while thieving; let him lie without ‘wergeld.’”76 So also, according to Javanese law, if a thief be caught in the act it is lawful to put him to death.77 For our present purpose 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 punished furtum manifestum much more heavily than furtum nec manifestum;78 and 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

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, called tendi, 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’s relations.”80 In 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.81 The Eastern Central Africans “are aware of the difference between murder and homicide,” even though the punishment of the two crimes is often the same.82 Among 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

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.”85 Among 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