life of another innocent person. However, the sentence of death was afterwards commuted by the Crown to six months’ imprisonment.14 In the same case it was even said that if the boy had had food in his possession, and the others had taken it from him, they would have been guilty of theft.15 Bacon’s proposition that “if a man steal viands to satisfy his present hunger, this is no felony nor larceny,”16 is not law at the present day.17 It was expressly contradicted by Hale, who lays down the following rule:—“If a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, and animo furandi steal another man’s goods, it is felony and a crime by the laws of England punishable with death; altho the judge, before whom the trial is, in this case (as in other cases of extremity) be by the laws of England intrusted with a power to reprieve the offender before or after judgment, in order to the obtaining the king’s mercy.”18 Britton excuses “infants under age, and poor people, who through hunger enter the house of another for victuals under the value of twelve pence.”19 According to the Swedish Westgöta-Lag, a poor man who can find no other means of relieving himself and his family from hunger may thrice with impunity appropriate food belonging to somebody else, but if he does so a fourth time he is punished for theft.20 The Canonist says, “Necessitas legem non habet”21—“Raptorem vel furem non facit necessitas, sed voluntas.”22 This principle has the sanction of the Gospel. Jesus said to the Pharisees, “Have ye not read what David did, when he was an hungered, and they that were with him; How he entered into the house of God, and did eat the shewbread, which was not lawful for him to eat, neither for them which were with him, but only for the priests?”23
13 Stephen, op. cit. ii. 108. So, also, according to Bacon’s Maxims of the Law, reg. 5 (Works, vii. 344), homicide is in such a case justifiable.
14 Reg. v. Dudley and Stephens, in Law Reports, Cases determined in the Queen’s Bench Division, xiv. 273 sqq.
15 Ibid. xiv. 276.
16 Bacon, Maxims of the Law, reg. 5 (Works, vii. 343).
17 Reg. v. Dudley and Stephens, in Law Reports, Queen’s Bench Division, xiv. 286.
18 Hale, op. cit. i. 54.
19 Britton, i. 11, vol. i. 42.
20 Westgöta-Lagen II. þiufua bolker, 14, p. 164 sq.
21 Gratian, Decretum, iii. 1. 11.
22 Ibid. iii. 5. 26.
23 St. Matthew, xii. 1 sqq.
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
24 Lane, Manners and Customs of the Modern Egyptians, p. 121.
25 Giles, Strange Stories from a Chinese Studio, ii. 217, n. 5.
26 Herrera, General History of the West Indies, iv. 337.
27 Dennett, in Jour. African Society, i. 276.
28 Cook, Journal of a Voyage round the World, p. 41 sq.
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