[7] Hale, op. cit. i. 51. Harris, op. cit. p. 24 sq.
[8] Denman, C. J., in Reg. v. Tyler, reported in Carrington and Payne, Reports of Cases argued and ruled at Nisi Prius, viii. 621.
[9] Code Pénal, art. 64; Chauveau and Hélie, Théorie du Code Pénal, i. 534 sqq. Italian Codice Penale, art. 49. Spanish Código Penal reformado, art. 8, § 9 sqq. Finger, Compendium des österreichischen Rechtes—Das Strafrecht, i. 119. Foinitzki, in Législation pénale comparée, edited by von Liszt, p. 530 (Russian law). Ottoman Penal Code, art. 42.
[10] Mommsen, Römisches Strafrecht, p. 653. Janka, Der strafrechtliche Notstand, p. 48.
[11] Janka, op. cit. p. 60. A different view, however, is expressed by Covarruvias (De matrimoniis, ii. 3. 4. 6 sq. [Opera omnia, i. 139]):—“Metus numquam excusat nec a mortali, nec a veniali crimine. Peccatum maximum malum, nec eo quid grauius.”
[12] Benny, Criminal Code of the Jews according to the Talmud Massecheth Synhedrin, p. 125.
Suppose, again, that the motive of breaking the law is what has been called “compulsion by necessity.” The old instance of shipwrecked persons in a boat unable to carry them all is a standing illustration of this principle. Sir James Stephen says, that “should such a case arise, it is impossible to suppose that the survivors would be subjected to legal punishment.”[13] Yet, in a very similar case, occurring in the year 1884, they were. Three men and a boy escaped in an open boat from the shipwreck of the yacht Mignonette. After passing eight days without food, and seeing no prospect of relief, the men killed the boy, who was on the verge of death, in order to feed on his body. Four days later they were rescued by a passing ship; and, on their arrival in England, two of the men were tried for the murder of the boy. The defence raised was that the act was necessary for the purpose of self-preservation. But it was held by the Court for Crown Cases Reserved, that such necessity was no justification of the act of causing death when there was a distinct intention to take away the 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.