Page:William Blackstone, Commentaries on the Laws of England (4th ed, 1770, vol IV).djvu/192

 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