[61] Laws of Alfred, ii. 42.
[62] Pollock and Maitland, op. cit. ii. 484. The same right is granted by a Spanish mediæval law to a father, or a husband, who finds a man having illegitimate sexual intercourse with his daughter, or wife (Du Boys, Histoire du droit criminel de l’Espagne, p. 93).
[63] Hale, op. cit. i. 486. Harris, op. cit. p. 145. Cherry, Lectures on the Growth of Criminal Law, p. 82 sq.
[64] Italian Codice Penale, art. 377. Spanish Código Penal reformado, art. 438. Ottoman Penal Code, art. 188.
[65] Günther, Idee der Wiedervergeltung, iii. 233 sqq.
[66] Code Pénal, art. 324.
[67] Foinitzki, loc. cit. p. 548.
Whilst the law referring to self-defence has gradually become more liberal, the law referring to self-redress in the case of adultery has thus, generally speaking, become more severe. The reason for this is obvious. A husband who slays his unfaithful wife or her accomplice does not defend, but avenges himself; and it is to be expected that a society in which punishment has only just succeeded revenge should still admit, or tolerate, revenge in extreme cases. The privilege granted to the outraged husband is not the sole survival of the old system of self-redress lingering on under the new conditions. According to Kafir custom or law, the relatives of a murdered man become liable only to a very light fine if they kill the murderer.[68] The ancient Teutons, at a time when their laws already prohibited private revenge, did not look upon an avenger of blood in the same light as an ordinary manslayer;[69] and even the Church recognised the distinction.[70] Some of the ancient Swedish laws entirely excused homicide committed in revenge immediately after the crime.[71] According to the Östgöta-Lag, an incendiary taken in flagrancy might be at once burnt in the fire,[72] and ancient Norwegian law permitted the slaying of a thief caught in the act.[73] In the Laws of Ine there is an indication that a thief’s fate was at the discretion of his captor,[74] and a law of Æthelstan implies that the natural and proper course as to thieves was to kill them.[75] In the Laws of King Wihtræd it is said, “If any one slay a layman while thieving; let him lie without ‘wergeld.’”[76] So also, according to Javanese law, if a thief be caught in the act it is lawful to put him to death.[77] For our present purpose it is important to note that all such cases imply a recognition of the principle that an act committed on extreme provocation requires special consideration. To declare that an adulterer or adulteress caught in flagrancy, or a manifest thief, may be slain with impunity, is a concession to human passions, which are naturally more easily aroused by the sight of an act than by the mere knowledge of its commission. It was for a similar reason that the Law of the Twelve Tables punished furtum manifestum much more heavily than furtum nec manifestum;[78] and that the Laws of Alfred imposed death as the penalty for fighting in the King’s hall if the offender was taken in the act, whereas he was allowed to pay for himself if he escaped and was subsequently apprehended.[79]
[68] Maclean, op. cit. p. 143. Cf., however, ibid. p. 110.
[69] Wilda, op. cit. p. 562. Stemann, op. cit. p. 582 sq.