Page:William Blackstone, Commentaries on the Laws of England (4th ed, 1770, vol IV).djvu/43

Ch. 2. Ch. 2. WRONGS. 31 pernicious of the two. Here the will cannot be faid freely to exert itfelf, being rather paffi ve, than active ; or, if active, it is rather in rejecting the greater evil than in chooling the lefs. Of this fort is that neceffity, where a man by the commandment of the law is bound to arreft another for any capital offence, or to difperfe a riot, and reliftance is made to his authority : it is here juftifiable and even necefTary to beat, to wound, or per- haps to kill the offenders, rather than permit the murderer to efcape, or the riot to continue. For the prefervation of the peace of the kingdom, and the apprehending of notorious ma- lefactors, are of the utmoft confequence to the public ; and therefore excufe the felony, which the killing would other- wife amount to". 4. T H E R E is yet another cafe of neceffity, which has occa- fioned great fpeculation among the writers upon general law ; viz. whether a man in extreme want of food or clothing may juflify ftealing either, to relieve his prefent neceffities. And this both Grotius and Puffendorf p, together with many other of the foreign jurifts, hold in the affirmative ; maintaining by many ingenious, humane, and plaufible reafons, that in fuch cafes the community of goods by a kind of tacit conceffion of fociety is revived. And fome even of our own lawyers have held the fame q ; though it feems to be an unwarranted doctrine, borrowed from the notions of fome civilians : at lead it is now antiquated, the law of England admitting no fuch excufe at prefent'. And this it's doctrine is agreeable not only to the fentiments of many of the wifefl antients, particularly Cicero 8 , who holds that " fuum cuique incommodum ferendum eft, potius " quam de alterius commodis detrahendum;" but alfo to the Jewiih law, as certified by king Solomon himfelf ( : " if a thief fleal to " fatisfy his foul when he is hungry, he fhall reftore fevenfold, i Hal. P. C. 53. ' I Hal. P. C. 54. de jure b. & p. 1. z. c. 2. * de if. I. 3 . c. 5. I" L. of Nat. and N. 1. 2. c. 6. ' Prov. vi. 30. S Briton, c. 10. Mirr. c. 4. . 16. " and