The origin and development of the moral ideas

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