180 PUBLIC BOOK IV. of a riot, or rebellious aflembly, the officers endeavouring to dilperfe the mob are juftifiable in killing them, both at common law , and by the riot acl, i Geo. I. c. 5. 4. Where the pri- foners in a gaol, or going to gaol, afiiuilt the gaoler or officer, and he in his defence kills any of them, it is juftifiable, for the fake of preventing an efcape p . 5. If trefpaflers in forefts, parks, chafes, or warrens, will not furrender themfelves to the keepers, they may be flain ; by virtue of the ftatute 21 Edw. I. ft. 2. de malefaSloribiis in pare is, and 3 & 4 W. & M. c. 10. But, in all thefe cafes, there muft be an apparent neceffity on the officer's fide ; viz. that the party could not be arrefted or apprehended, the riot could not be fupprefled, the prifoners could not be kept in hold, the deer-ftealers could not but efcape, unlefs fuch ho- micide were committed : otherwife, without fuch abfolute ne- ceflity, it is not juftifiable. 6. If the champions in a trial by battel killed either of them the other, fuch homicide was juf- tifiable, and was imputed to the juft judgment of God, who was thereby prefumed to have decided in favour of the truth q .
3. IN the next place, fuch homicide, as is committed for the prevention of any forcible and atrocious crime, is juftifiable by the law of nature ' ; and alfo by the law of England, as it ftood ib early as the time of Bracton s , and as it is fince declared by ftatute 24 Hen. VIII. c. 5. If any perfon attempts a robbery or murder of another, or attempts to break open a houfe in the night time, (which extends alfo to an attempt to burn it c ,) and mail be killed in fuch attempt, the flayer fhall be acquitted and difcharged. This reaches not to any crime unaccompanied with force, as picking of pockets ; or to the breaking open of any houfe in the day time, unlefs it carries with it an attempt of rob- bery alfo. So the Jewifli law, which punifhed no theft with death, makes homicide only juftifiable, in cafe of noBurnal houfe - breaking : " if a thief be found breaking up, and he be fmitten
i Hal. P. C. 495. i Hawk. P. C. 161. ' Puff. L. of N. 1. 2. c. 5, P i Hal. P. C. 496. 'fill. 155. i i Hawk. P. C. 71. ' i Hal P. C. 488. " that
