" that he die, no blood ſhall be ſhed for him : but if the fun " be riſen upon him, there ſhall blood be ſhed for him ; for he " mould have made full reſtitution[1]." At Athens, if any theft was committed by night, it was lawful to kill the criminal, if taken in the fact[2]: and, by the Roman law of the twelve tables, a thief might be ſlain by night with impunity ; or even by day, if he armed himſelf with any dangerous weapon[3] : which amounts very nearly to the fame as is permitted by our own conſtitutions.
The Roman law alſo justifies homicide, when committed in defence of the chaſtity either of oneſelf or relations[4] : and ſo alſo, according to Selden[5] , flood the law in the Jewiſh republic. The Engliſh law likewiſe juſtifies a woman, killing one who attempts to raviſh her[6] : and ſo too the huſband or father may juſtify killing a man, who attempts a rape upon his wife or daughter ; but not if he takes them in adultery by conſent, for the one is forcible and felonious, but not the other[7]. And I make no doubt but the forcibly attempting a crime, of a ſtill more deteſtable nature, may be equally reſiſted by the death of the unnatural aggreſſor. For the one uniform principle that runs through our own, and all other laws, ſeems to be this : that where a crime, in itſelf capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting. But we muſt not carry this doctrine to the ſame viſionary length that Mr. Locke does ; who holds[8], " that all man " ner of force without right upon a man's perſon, puts him in a " ſtate of war with the aggreſſor ; and, of conſequence, that, " being in ſuch a ſtate of war, he may lawfully kill him that " puts him under this unnatural reſtraint." However juſt this concluſion may be in a ſtate of uncivilized nature, yet the law
- ↑ Exod. xxii. 2.
- ↑ Potter. Antiqu. b. 1. c. 24.
- ↑ Clc.pro Milone. 3. Ff. 9. 2. 4.
- ↑ " Divus Hadrianus reſcripſit, eam qui ſtuprum ſibi vel fuii inſerentem ocddit, dimittenaiim" (Ff. 48. 8. i .)
- ↑ de Legib. Hebrteor. l. 4. c. 3.
- ↑ Bac. Elem. 34. I Hawk. P. C. 71.
- ↑ 1 Hal. P. C. 485, 486.
- ↑ Eſſ. on gov. p. 2. c . 3,
