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13 H. 8. f. 16.

for any danger of tempest justify the throwing them overboard: for there it holdeth which was spoken by the Roman, when they alleged the same necessity of weather to hold him from embarking, necesse est ut eam, non ut vivam. So in the case put before of husband and wife; if they join in committing treason, the necessity of obedience doth not excuse the offence as it doth in felony, because it is against the commonwealth. So if a fire be taken in a street, I may jusper Shelly. tify the pulling down of the wall or house of another man to save the row from the spreading of the fire; but if I be assailed in my house, in a city or town, and be distressed, and to save my life I set fire on mine own house, which spreadeth and taketh hold on the other houses adjoining; this is not justifiable, but I am subject to their action upon the case, because I cannot rescue mine own life by doing anything against the commonwealth. But if it had been but a private trespass, as the going over another's ground, or the breaking of his inclosure when I am pursued, for the safeguard of my life, it is justifiable.

This rule admitteth an exception, when the law intendeth some fault or wrong in the party that hath brought himself into the necessity, so that it is necessitas culpabilis. This I take to be chief reason why seipsum defendendo is not matter of justification: because the law intends it hath a commencement upon an unlawful cause, because quarrels are not presumed to grow without some wrongs either in words. or deeds on either part; and the law, thinking it a thing hardly triable in whose default the affray or quarrel began, supposeth the party that kills another in his own defence not to be without mal

4 H. 7. f. 2. pl. 3.

Stamford,

f. 15.

ice; and therefore, as it doth not touch him in the highest degree, so it putteth him to sue out his pardon of course, and punisheth him by forfeiture of goods: for where there can be no malice nor wrong presumed, as where a man assails me to rob me, and I kill him that assaileth me, or if a woman kill him that assaileth her to ravish her, it is justifiable without any pardon.

So the common case proveth this excep- Stamıf. f. 16. tion; that is, if a madman commit a felony, he shall not lose his life for it, because his infirmity came by the act of God; but if a drunken man commit a felony, he shall not be excused, because his imperfection came by his own default. For1 the reason of loss and deprivation of will and election by necessity and by infirmity is all one; for the lack of arbitrium solutum is the matter and therefore as infirmitas culpabilis excuseth not, no more doth necessitas culpabilis.

REGULA VI.

Corporalis injuria non recipit æstimationem de futuro.2

THE law, in many cases that concern lands or goods, doth deprive a man of his present remedy and turneth him over to some further circuit of remedy, rather than to suffer an inconvenience: but if it be question of personal pain, the law will not compel him to sustain it and expect remedy; because it holdeth no damages a sufficient recompense for a wrong which is corporal.

1 Omitted in Camb. MS.

2 The words de futuro are omitted in the Camb. MS. as is the contrast with the lex talionis applied de præterito, in the last paragraph of the rule.

4. f. 93, 94,

&c.

As if the sheriff make a false return that I am summoned, whereby I lose my land; yet, because of the Long 5° Ed. inconvenience of drawing all things to incertainty and delay if the sheriff's return should not be credited, I am excluded of my averment against it, and am put to mine action of deceit against the sheriff and summoners: but if the sheriff upon a capias return cepi corpus, et quod est languidus in prisona, there I may come in and falsify the return of the sheriff to save my imprisonment.

3. H. 6. f. 3. pl. 3.

So if a man menace me in my goods, as that he will burn certain evidences of my land which he hath in his hand, if I will not make unto him a bond; yet if I enter into bond by this terror, I cannot avoid it by plea, because the law holdeth it an inconvenience to avoid a specialty by such matter of averment; and therefore I am put to mine action against such a 7 Ed. 4. f. 21. menacer: but if he restrain my person, or threaten me with battery, or with burning my house which is a safety and protection to my person, or with burning an instrument of manumission which is evidence of my enfranchisement; if upon such menace or duresse I make a deed, I shall avoid it by plea.

pl. 24.

So if a trespasser drive away my beasts over another's ground and I pursue them to rescue them, yet am I trespasser to the stranger upon whose ground I come but if a man assail my person, and I fly over another's ground, now am I no trespasser.

This ground some of the canonists do aptly infer out of the saying of Christ: Annon est corpus supra vestimentum? where they say vestimentum comprehendeth all outward things appertaining to a man's condition,

as lands and goods, which, they say, are not in the same degree with that which is corporal; and this was the reason of the ancient lex talionis; oculus pro oculo, dens pro dente so that by that law corporalis injuria de præterito non recipit æstimationem: but our law, when the injury is already executed and inflicted, thinketh it best satisfaction to the party grieved to relieve him in damages, and to give him rather profit than revenge; but it will never force a man to tolerate a corporal hurt, and to depend upon that inferior kind of satisfaction, ut in damagiis.

REGULA VII.

Excusat aut extenuat delictum in capitalibus, quod non operatur idem in civilibus.

IN capital causes, in favorem vitæ, the law will not punish in so high a degree, except the malice of the will and intention do appear; but in civil trespasses and injuries that are of an inferior nature, the law doth rather consider the damage of the party wronged, than the malice of him that was the wrong-doer.

And therefore the law makes a difference between killing a man upon malice forethought, and upon a present heat: but if I give a man slanderous words, whereby I damnify him in his name and credit, it is not material whether I use them upon sudden choler and

1 The Camb. MS. has only:

"But when the injury is already executed and inflicted, the law can do no more but relieve a man in damages; but it will never force him to tolerate a corporal hurt, and to depend upon that inferior kind of satisfaction."

provocation or of set malice; but in an action upon the case I shall render damages alike.

1 So if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course :

Stamf. 16.

6 E. 4. f. 7. pl. 18.

but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party's mind and will, and he shall be punished in the same as deeply as if he had done it of malice.

Stamf. 16 b.

So if a surgeon authorised to practice do, through negligence in his cure, cause the party to die, the surgeon shall not be brought in question of his life; and yet if he do only hurt the wound, whereby the cure is cast back, and death ensues not, he is subject to an action upon the case for his misfeasance.

So if baron and feme be, and they commit felony together, the feme is neither principal nor accessory, in regard of her obedience to the will of her husband: but if baron and feme join in committing a trespass upon land or otherwise, the action may be brought against them both.

8 H. 7. f. 1.

pl. 4.

35 H. 6. f. 11.

pl. 18.

So if an infant within years of discretion, Stamf. 16 b. or a madman, kill another, he shall not be impeached thereof: but if he put out a man's eye, or do him like corporal hurt, he shall be punished in trespass.

So in felonies the law admitteth the difference of principal and accessory; and if the principal die, or be pardoned, the proceeding against the accessory Plow. f. 93. faileth: but in trespass, if one command his man to beat you, and the servant after the battery die, yet your action of trespass stands good against the master.

1 Omitted in Camb. MS.

2 The rest of the rule is omitted in the Camb. MS.

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