From: "John Hurst", [EMAIL PROTECTED]
> Was Gaule still in fear for his life at the time he fired his final shot?
The trial jury thought not. But was Gaule stunned and confused enough by
his experience that his actions are excusable -- can society reasonably
expect a man shocked with high-voltage taser blasts to the neck, on top of
the fight-for-your-life adrenalin dump which could overrule normal
deliberation for any average person caught in such a crisis, to pause at
>his doorway and muse on the intricacies of the laws of self-defense?
Derek,
Society, in the distilled wisdom of generations known as the
common law, takes the effects of shock into account. And Roman law does
also, as these texts show.
Regards, John Hurst.
==============================================================
"The defence of one's self, or the mutual and reciprocal defence of such as
stand in the relations of husband and wife, parent and child, master and
servant. In these cases, if the party himself, or any of these his
relations, be forcibly attacked in his person or property, it is lawful
for him to repel force by force; and the breach of the peace, which happens,
is chargeable upon him only who began the affray. For the law, in this case,
respects the passions of the human mind; and (when external violence is
offered to a man himself, or those to whom he bears a near connection) makes
it lawful in him to do himself that immediate justice, to which he is
prompted by nature, and which no prudential motives are strong enough to
restrain. It considers that the future process of law is by no means an
adequate remedy for injuries accompanied with force; since it is impossible
to say, to what wanton lengths of rapine or cruelty outrages of this sort
might be carried, unless it were permitted a man immediately to oppose one
violence with another. Self-defence therefore, as it is justly called the
primary law of nature, so it is not, neither can it be in fact, taken away
by the law of society. In the English law particularly it is held an excuse
for breaches of the peace, nay even for homicide itself: but care must be
taken, that the resistance does not exceed the bounds of mere defence and
prevention; for then the defender would himself become an aggressor.
If any person attempts to break open a house in the night-time, and shall be
killed
in such an attempt, the slayer shall be acquitted and discharged."
Sir William Blackstone "Commentaries on the Laws of England" Volume 3, 1st
Edition.
"According to all authorities, that of the Mosaic and the civil law, as
well as our own custom, and indeed by the express permission of the statute
1661, c.22, one is also justified in killing him who breaks into one's house
in the night, to steal. It would not however be reasonable to construe those
authorities narrowly, so as to limit the privilege to the single case of an
attempt to steal : They are rather to be received as grounds, a fortiori, to
authorise the like course of resistance of one who breaks into a house to
commit murder, rape, or hamesucken, or to set fire to the house. Nor is it
necessary that the man may have carried his assault so far, as clearly to
show which of these several felonies he had in view : It is sufficient that
he has entered the house, or has broke the safeguard of the building, so
that
he may enter when he will, and is in the act or immediate preparation so to
do. For this is an exercise of so bold and so deliberate a nature and one in
which he has already so much the advantage, as warrants those within to draw
the worst designs, and such as are not to be prevented but by superior
force;
and indeed all they can do on this sudden alarm is no more than sufficient
to put them on an equal footing with the felon, who comes cool and equipped
for the adventure. Tenderness for the life of another may indeed suggest
to one to endeavour, by cries and otherwise, to deter him from his purpose,
before proceeding to make use of higher means; But howsoever commendable
this generosity in those who have presence of mind for it, still it is what
the law cannot absolutely enjoin, or hold any one as culpable for omitting.
The main consideration in all such cases is the alarm and danger of the true
man, who of sudden, at the hour of rest, finds the safeguard of his dwelling
broken, and his person at the power of a felon, who in these circumstances
may accomplish his purpose, and escape unknown. On such an occasion, the
master of the house may always be said to be within the protection of that
text of the Roman law, which allows the killing of the nightly thief, "si
parcere ei, sine suo periculo non potest;" for there is always a hazard,
less or more, to those within, from an assault which has already been
carried
so far with success."
"The only other article in our list of capital offences against the person
is Hamesucken, or "the felonious seeking out and invasion of a person in his
dwelling-place or house.
Notice is taken of this crime, and the same description is given of it, in
the laws of the Visigoths, and in those of Edmund, the Anglo-Saxon King, and
of Canute the Dane. It seems also to have been known under that name, and as
a capital offence, in the law of Utrecht, and of some other states of modern
times. Our oldest memorial concerning it is in the Regiam Majestatem, which
appoints the complaint and prosecution to be made in the like course as for
rape or robbery; as indeed the guilt in such a case far exceeds that of an
ordinary assault, and is of that bold and heinous character, which makes the
crime a fit companion of those high transgressions.
For beside the present alarm and terror of such an invasion, it tends to the
disturbance of a man's peace for the future, that the violence of a ruffian
has once been able to reach him in that place which is more peculiarly his
own, and which the law has carefully fenced for him, as his sanctuary and
surest refuge from all manner of harm.
It is true it may not be so necessary now, as in more undisciplined times,
to
punish this transgression in every instance to the utmost extent of what the
prosecutor may insist for: yet still the crime retains that rank as a point
of dittay, which ancient custom had assigned it (for it rests on custom
only)
and in any case of an extreme or atrocious injury, may be warrantably
punished with the highest pains of law.
The principal circumstance in the description of hamesucken, is the
violation
of the security of a person's house."
Extract from Introduction to the 1986 reprint of Hume's Commentaries of
Crimes Chap.VIII. Of Hamesucken by David M. Walker, Regius Professor of Law,
University of Glasgow.
-------[Cybershooters contacts]--------
Editor: [EMAIL PROTECTED]
Website & subscription info: www.cybershooters.org
