and the very relation of acquaintance, and mutual fociety between A. B. and C. feems to excufe the fact of A. in the neceffary fafeguard of the life of B. from the crime of fimple homicide; tamen quære. If A be travelling, and B. comes to rob him, if C. falls into the company, he may kill B. in defenfe of A. and therefore much more, if he come to kill him, and fuch his intent be apparent, for [485] in fuch case of a felony attempted, as well as of a felony committed, every man is thus far an officer, that at least his killing of the attempter in cafe of neceffity puts him in the condition of fe defendendo in defending his neighbour; but of this more hereafter. A. makes an affault upon B. a woman or maid with intent to ravifh her, the kills him in the attempt, it is fe defenden lo because he intended to commit a felony. Dalt. cap. 93. p. 250. And fo it is if C. the hufband or father of B. had killed him in the attempt, if it could not be otherwife prevented; but if it might be otherwise prevented, it is manflaughter; therefore circumstances must guide in that case. III. I come to confider, what the offenfe is in killing him that takes the goods, or doth injury to the house or poffeffion of another. And herein there will be many diversities, as first, between a trefpaffing act and a felonious act, and between felonious acts themfelves. If A. pretending a title to the goods of B. takes them away from B. as a trefpaffer, B. may juftify the beating of A. but if he beat him fo that he dies, it is neither justifiable, nor within the privilege of fe defendendo, but it is manslaughter. Dalt. cap. 98. p. 251. A. is in poffeffion of the house of B. B, endeavours to enter upon him, A. can neither juftify the affault nor beating of B. for B. had the right of entry into the houfe, but if A. be in poffeffion of a houfe, and B. as a trefpaffer enters without title upon him, 4. may not beat him, but may gently lay his hands upon him to put him out, and if B. refifts and affaults A. then A. may juftify the beating of him, as of his own affault. But if A. kills him in defenfe of his houfe, it is neither juftifiable, nor within the privilege of fe defendendo, for he entered only as a trefpaffer, and therefore it is at least common manslaughter: this was Harcourt's cafe Crompt, 27. a. who being in poffeffion of a house by title, as it feems, A. eadeavoured to enter and fhot an arrow at them within the houfe, and Harcourt from within fhot an [485] arrow at thofe that would have entered, and killed one of the company, this was ruled manflaughter, 5 Eliz. and it was not Je defendendo, because there was no danger of his life from them without. But if A, had entered into the house, and Harcourt had gently laid his hands upon him to turn him out, and then A. had turned upon him, and affaulted him, and Harcourt had killed him, it had been fe defendendo, and so it had been if A. had entered upon him, and affaulted him firft. tho he intended not to kill him, yet if Harcourt had thereupon killed A. it had been only fe defendendo, and not manflaughter, tho the entry of A. was not with intent to murder him, but only as a trefpaffer to gain the poffeffion, 3 E. 3. Coron. 35. Cromp. 27. b. and it feems to me in fuch a cafe Harcourt, being in his own house, need not fly as far as he can, as in other cases of se defendendo, for he had the protection of his house to excuse him from flying, for that would be to give up the poffeffion of his house to his adverfary by his flight. A. commits adultery with B. the wife of C. who comes up and takes them in the very act, and with a staff kills the adulterer upon the place; this is manslaughter, and neither murder, nor under the privilege of fe defendendo: but if A. had been taken by C. in the very attempt of a rape upon the wife, and the crying out, her husband had come and killed A. in the act of his ravishment, it had been within the privilege of fe defendendo, because it was a felony; the former cafe was adjudged manslaughter by the court, B. R. M. 23. Car. 2. (d). Now concerning felonies, as there is a difference between them and trefpaffes, fo there is a difference among themselves in relation to the point of fe defendendo. If a man come to take my goods as a trefpaffer, I may justify the beating of him in defenfe of my goods, as hath been faid; but if I kill him, it is manslaughter. But if a man comes to rob me, or take my goods as a felon, and in my refiftance of his attempt I kill him, it is me defendendo at least, and in fome cafes not so much. (d) Manning's cafe Raym. 212. When he was to be burnt in the hand, the court directed it to be done gently, because they faid there could not be a greater pro vocation. At common law, if a thief had affaulted a man to rob him, and he had kild the thief in the affault, it had been fe defendendo, but yet he had forfeited his goods, as fome have thought, 11 Co. Rep. 82. b. tho other books be to the contrary. 26 Afiz. 32. But if A. had attempted a burglary upon the house of B. to the intent to steal, or to kill him, or had attempted to burn the house of B. if B. or any of his fervants, or any within his houfe had fhot and kild A. this had not been fo much as felony, nor had he forfeited ought for it, for his houfe is his caftle of defense, and therefore he may justify affembling perfons for the fafe-guard of his houfe. 21 H. 7. 39. a. 11 Co. Rep. 82. b. 5 Co. Rep. 91. b. 26 Affiz. 23. 3 E. 3. Coron. 330. But otherwise it is, as hath been faid, in cafe of a trefpaffing entry into the house claiming a title, and not to commit felony. But now by the ftatute of 24 H. 8. cap. 5. "If any perfon attempts any robbery or murder of any person in or near any common highway, cartway, horfeway, or footway, or in their manfion houfes, "or do attempt to break any manfion-house in the night-time, and "shall happen to be kild by any perfon or perfons, &c. (tho a lodger or fervant) they shall upon their trial be acquitted and discharged in "like manner, as if he had been acquitted of the death of such per"fon." P. 15 Car. 1. Cooper's cafe. (e) This ftatute was to remove a doubt, and was declarative and enacting, and puts the killing of a robber in or near the highway, &c. in the fame condition with one, that intends to rob or murder in the dwelling-house, and exempts both from forfeiture, and hath settled the doubt. And upon this statute it was, that when there was malice between A. and B. and they had fought several times, and after met fuddenly in the ftreet near Ludgate, and A. faid he would fight him, B. declined it, and fled to the wall, and called others to witnefs it, and A. purfued him, and ftruck him firft, and B. in his own defenfe kild him, he was acquit from any forfeiture by the statute of 24 H. 8. cap. 5. 15 Eliz. Cromp. 27. b. Copston's case: but upon this statute these things are obfervable. [488] 1. It extends not to the case of a bare trefpaffing entry into a house, but only to fuch an entry or attempt as is intended to be for murder or robbery, &c. or fome fuch felony, and therefore the cafes of trefpaffes, either in houses or near highways, are left as before. 2. It seems, that it extends not to indemnify the killing of a felon, where the felony is not accompanied with force, for it fpeaks of robbery, therefore the killing of one that attempts to pick my pocket, is not within the act, for there is no fuch neceffity; indeed, if any felon, after a felony committed, doth refift thofe, that endeavour to apprehend him, or fly, and be kild, this killing is no felony, but that is upon another account, for this ftatute hath relation only to killing before, or in the felony committed, not after. 3. It speaks only of breaking the house in the night-time, so that it feems it extends not to a breaking the house in the day-time, unless it be fuch a breaking, as imports, with it apparent robbery, or an intention, or attempt thereof. 4. Tho the statute speaks not of burning houses, yet he, that attempts the wilful burning of a house, and is kild in that attempt, is free from forfeiture, without the aid of this ftatute, as appears 26 Affiz. 23. By the judicial law, Exod. xxii. 2, 3. If a thief be found breaking up, and he be fmitten that he die, no blood shall be shed for him, but if the fun be rifen upon him, there shall blood be fed for him, for he should make refiitution, and if he have nothing, he shall be fold for his theft : and by the Roman law of the twelve tables, Fur manifefta furta deprehenfus, fi aut, cum faceret furtum, nox effet, aut inter-diu fe telo, cum deprehenderetur, defenderet, impune occideretur (f): upon the latter of thefe laws the civilians and canonifts have made many curious diftinctions, quas vide apud Covarruviam, Tom. I. Par. 3. de homicidio ad defenfionem commiffo (g); and upon the former the Jewish Rabbies have made the like, quas vide apud Selden de jure [489] gentium. But as the laws of feveral nations, in relations to crimes and punishments differ, and yet may be excellently fitted to the exigencies and conveniences of every several state, fo the laws of England are excellently fitted in this and most other matters to the conveniencies of the English government, and full of excellent reafon, and therefore I shall not trouble myself about other laws than thofe of England. (h). (f) Dig. Lib. IV. tit. 2. ad leg. Aquil. 1. 4. §. 1. Agel. Lib. XI. cap. 18. vide Supra cap. 1. p. 36. (g) p. 561. Edit. Antwerp 1614. (b) By the common law, Qui latronem occiderit mofurnum vel diuturnum, non tene. tur, fi aliter periculum evadere non poffit, ter Vide LL. Witbred. Elit. Wilk. p. 12. IV. There 1 IV. There remains yet one other particular, namely, the killing a malefactor, that doth not yield himself to justice upon purfuit. If a perfon be indicted of felony and flies, or being arrested by warrant or procefs of law upon fuch indictment efcapes and flies, and will not render himself, whereupon the officer or minister cannot take him without killing of him, this is not felony, neither fhall the killer forfeit his goods, or be driven to fue forth his pardon, but upon his arraignment fhall plead not guilty, and accordingly it ought to be found by the jury. 3 E. 3. Coron. 288. But if he may be taken without feverity, it is at least manslaughter in him, that kills him, therefore the jury is to inquire, whether it were done of neceffity or not. 22 Affiz. 55 Stamf. P. C. Lib. I. cap. 5. fol. 13. b. And the fame law it is, if A. commits felony and flies, or refifts the people, that come to apprehend him, fo that he cannot be taken without killing him, fuch killing is not felony, nor does the perfon, that did it, forfeit any thing, tho A. were not indicted, nor the perfon, that did it, had any warrant of any court of justice, for in fuch cafe the law makes every person an officer to apprehend a felon. 22 E 3. Corn. 261. And the fame law it is, if he be taken, and in bringing to the goal he breaks away, and the people of the vill purfue and cannot take him, unless they kill him, thofe, that kill him, upon their arraignment fhall be acquitted of the felony, but yet the township fhall be amerced for the efcape, and the person kild shall for [490] feit his goods upon the flight found. 3 E. 3. Cor. 328. 340. and by fome it hath been held he fhall forfeit the iffue of his lands, till the year and day be paft. 3 E. 3. Coron. 290. If A. be fufpected by B. to commit a felony, but in truth he committed none, neither is indicted, yet upon the offer to arrest him by B. he refifts and flies, whereby B. cannot take him without killing him, and B. kills him, if in truth there were no felony committed, or B. had not a probable caufe to fufpect him, this killing is at least manflaughter, but if there was a felony committed, and B. hath caufe to fufpect A. but in truth A. is not guilty of the fact, tho upon this account B. may juftify the imprisonment of A. yet quære, if B. kills A. in the purfuit, whether this will excufe him from manflaughter. But if a felony be committed, but not by A. but by fome other, and B. hath a warrant from a juftice of peace to apprehend 4. or that |