Livy says, "Men, to guard against their alarms, make themselves objects of terror; averting the danger from their own heads, by imposing upon others the necessity of either doing or suffering the evil which they themselves fear." Vibius asked a person, that appeared armed in the forum, "Who gave you permission to shew your fear in this manner?" A question not inapplicable to the present subject, and much commended by Quintilian. Livia also in Dion says, that great infamy redounds to those, who by anticipation perpetrate the criminal act, which they fear.
Now if any one intend no immediate violence, but is found to have formed a conspiracy to destroy me by assassination, or poison, or by false accusation, perjury, or suborned witnesses, I have no right to kill him. For my knowledge of the danger may prevent it. Or even if it were evident that I could not avoid the danger without killing him; this would not establish my right to do so. For there is every presumption that my knowing it will lead me to apply for the legal remedies of prevention.
VI. and VII. The next thing to be considered is, what must be said upon the mutilation of a limb. Now, as the loss of a limb, especially that of a principal limb in the body, is a grievous detriment, and nearly equal to the loss of life, to which may be added the probability of death ensuing from such a calamity; the lawfulness of killing any one, who makes such an attempt, if the danger cannot otherwise be avoided, scarce admits of a doubt. Neither is there any more difficulty in allowing the same right for the personal defence of chastity, the preservation of which, both in the common estimation of men, and by the divine law, is deemed of equal value with life itself. We have an example of this in Cicero, Quintilian, and Plutarch, in the person of one of Marius's tribunes, who was killed by a soldier. Among the actions of women, who have defended themselves, Heliodorus records that of Heraclea, which he calls a just defence of her injured honour.
VIII. Though some, as it has been already said, admit the lawfulness of killing the person, who attempts with open violence to destroy one's life, yet they deem it more commendable to spare the life of another, even at the hazard of one's own. Yet to persons, in whose preservation the public interest is involved, they will grant an exemption from this rule of forbearance. Indeed it seems unsafe to impose upon ANY, whose lives are of importance to others, a rule of forebearance so contrary to all the principles of all law. This exemption therefore must be allowed to all vested with any public office, which makes them responsible for the safety of others; as the generals who conduct armies, or the rulers of the state, and many others in similar situations; to whom may be applied the lines of Lucan—"When the lives and safety of so many nations depend upon yours, and so great a portion of the world has chosen you for its head; it is cruelty to expose yourself wilfully to death."
IX. On the other hand it may happen, that the aggressor may be one whose person is rendered sacred and inviolable by all divine, human, and natural laws; which is the case with respect to the person of the Sovereign. For the law of nature regards not only the principles of STRICT JUSTICE, but comprises other virtues also, as temperance, fortitude, and discretion, making the observance of them in certain cases, binding as well as honourable. To observe these we are bound also by the law of charity.
Nor is the truth of this argument at all weakened by what Vasquez has advanced, who maintains that the Sovereign who attempts the life of an individual loses, in reality, the character of Sovereign: a doctrine fraught with equal absurdity and danger. For sovereignty cannot any more than property be forfeited by any particular act of delinquency; unless it has been previously and expressly so enacted by the fundamental laws of the state. For such a rule of forfeiture, which would be productive of universal anarchy and confusion, never has been, nor ever will be established among any civilized people. For the maxim, "that all government is framed for the benefit of the subject and not of the Sovereign," which Vasquez and many other writers lay down as a fundamental law, though it may be generally true in theory, is by no means applicable to the question. For a thing loses not its existence, by losing some part of its utility. Nor is there sufficient consistency in his observation, that every individual desires the safety of the commonwealth on his own account, and therefore every one ought to prefer his own safety to that of the whole state. For we wish for the public welfare not on our own account alone, but also for the sake of others.
The opinion of those who think that friendship arises from necessity alone, is rejected as false, by the more sound Philosophers; as we feel a spontaneous and natural inclination towards friendly intercourse. Charity indeed often persuades, and in some instances commands us to prefer the good of many to our own single advantage. To which the following passage from Seneca is very applicable. "It is not surprising that princes, and kings, or whatever name the guardians of the public welfare may bear, should be loved with a veneration and affection, far beyond those of private friendship. For all men of sober judgment, and enlarged information deem the public interest of higher moment than their own. Their attachment therefore must be warmest to the person on whom the well being and prosperity of the state depends." And to the same effect, St. Ambrose in his third book of Offices, says, "every man feels a greater delight in averting public than private danger." Seneca, the writer already quoted, produces two instances, the one of Callistratus at Athens, and the other of Rutilius at Rome, who refused to be restored from banishment thinking it better for two individuals to suffer hardship, than for the public to be plunged into calamities.
XI.[15] The next object to be considered, relates to injuries affecting our property. In strict justice, it cannot be denied that we have a right to kill a robber, if such a step is inevitably necessary to the preservation of our property. For the difference between the value of life and property is overbalanced by the horror which a robber excites, and by the favourable inclination felt by all men towards the injured and innocent. From whence it follows, that regarding that right alone, a robber may be wounded or killed in his flight with the property, if it cannot otherwise be recovered. Demosthenes in his speech against Aristocrates, exclaims, "By all that is sacred, is it not a dreadful and open violation of law, not only of written law, but of that law which is the unwritten rule of all men, to be debarred from the right of using force against the robber as well as against the enemy; who is plundering your property?" Nor is it forbidden by the precepts of charity, apart from all consideration of divine and human law, unless where the property is of little value, and beneath notice; an exception, which some writers have very properly added.
XII. The sense of the Jewish law on this point is now to be considered. The old law of Solon, to which Demosthenes, in his speech against Timocrates, appeals, agrees with it. From hence the substance of the Twelve Tables, and Plato's maxim in his ninth book of laws were taken. For they all agree in making a distinction between a thief who steals by day, and the robber, who commits the act by night; though they differ about the REASON of this distinction. Some think this distinction arises from the difficulty of discerning by night, whether an aggressor comes with an intent to murder or steal, and therefore he ought to be treated as an assassin. Others think the distinction is made, because as it is difficult to know the person of the thief, there is less probability of recovering the goods. In neither case do the framers of laws seem to have considered the question in its proper light. Their evident intention is to prohibit the killing of any one, merely on account of our property; which would happen, for instance, by killing a thief in his flight in order to recover the goods he had stolen. But if our own lives are endangered, then we are allowed to avert the danger, even at the hazard of another's life. Nor is our having run into the danger any objection; provided it was done to preserve or to recover our goods, or to take the thief. For no imputation of guilt can attach to us in any of these cases, while we are employed in doing a lawful act, nor can it be said that we are doing wrong to another by exercising our own right.
The difference therefore made between a thief in the night and a thief in the day, arises from the difficulty of procuring sufficient evidence of the fact. So that if a thief is found killed, the person who says, that he was found by him with a destructive weapon, and killed by him in his own defence, will easily gain belief. For the Jewish law supposes this, when it treats of a thief in the act of piercing, or, as some translate it, with a stabbing instrument. This interpretation accords with the law of the twelve tables, which forbids any one to kill a thief in the day time, except he defend himself with a weapon. The presumption therefore against a thief in the night is that he defended himself in such a manner. Now the term weapon comprehends not only an instrument of iron, but as Caius interprets this law, a club, or a stone. Ulpian on the other hand, speaking of a thief taken in the night, says that the person who kills him will incur no guilt, provided that in saving his property he could not spare his life, without endangering his own. There is a presumption, as it has been already observed, in favour of the person who has killed a thief taken in the night. But if there be evidence to prove, that the life of the person who killed the thief was in no danger; then the presumption in his favour fails, and the act amounts to murder.