Killing a Thief

Part 11: Killing a Thief

In strict justice, we have a right to kill a robber, if killing is necessary to preserve of our property.

The difference between the value of life and property is overbalanced by:

• the horror created by a robber excites
• man’s favour towards the injured and innocent

Demosthenes in his speech against Aristocrates, exclaims, “It is a dreadful and open violation of the natural law among men to be debarred from using force against the robber and the enemy who is plundering your property”

The exception is when the property is of little value.

Part 12:

The Jewish law makes a distinction between a thief who steals by day, and the robber, who commits the act by night.

The old law of Solon, to which Demosthenes, in his speech against Timocrates, appeals, agrees with it.

The Roman law of the Twelve Tables, and Plato’s maxim in book 9 of laws were based on that law of Solon.

But the Jewis law and Solon’s law differ on 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. Therefore he should 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 intention is to prohibit the killing of anyone, merely because of property.

• This 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.

The law of the twelve tables indeed required, that the person who took a thief either in the day time, or in the night, should make a noise that, if possible, the magistrates or neighbours might assemble to assist him and give evidence. But as such a concourse could more easily be assembled in the day time than in the night, as Ulpian observes upon the passage before quoted from Demosthenes, the affirmation of a person declaring the danger he was in during the night is more readily believed. To83 which an additional observation may be made, that, even under equal circumstances, the danger which happens by night can be less examined, and ascertained, and therefore is the more terrible. The Jewish law therefore, no less than the Roman, acting upon the same principle of tenderness forbids us to kill any one, who has taken our goods, unless for the preservation of our own lives.

XVI.16 What has been already said of the right of defending our persons and property, though regarding chiefly private war, may nevertheless be applied to public hostilities, allowing for the difference of circumstances. For private war may be considered as an instantaneous exercise of natural right, which ceases the moment that legal redress can be obtained. Now as public war can never take place, but where judicial remedies cease to exist, it is often protracted, and the spirit of hostility inflamed by the continued accession of losses and injuries. Besides, private war extends only to self-defence, whereas sovereign powers have a right not only to avert, but to punish wrongs. From whence they are authorised to prevent a remote as well as an immediate aggression. Though the suspicion of hostile intentions, on the part of another power, may not justify the commencement of actual war, yet it calls for measures of armed prevention, and will authorise indirect hostility. Points, which will be discussed in another place.

XVII.

Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorises one power to commence hostilities against another, whose increasing greatness awakens her alarms. As a matter of expediency such a measure may be adopted, but the principles of justice can never be advanced in its favour. The causes which entitle a war to the denomination of just are somewhat different from those of expediency alone. But to maintain that the bare probability of some remote, or future annoyance from a neighbouring state affords a just ground of hostile aggression, is a doctrine repugnant to every principle of equity. Such however is the condition of human life, that no full security can be enjoyed. The only protection against uncertain fears must be sought, not from violence, but from the divine providence, and defensive precaution.

XVIII.

There is another opinion, not more admissible,84 maintaining that the hostile acts of an aggressor, may be considered in the light of defensive measures, because, say the advocates of this opinion, few people are content to proportion their revenge to the injuries they have received; bounds which in all probability the party aggrieved has exceeded, and therefore in return becomes himself the aggressor. Now the excess of retaliation cannot, any more than the fear of uncertain danger, give a colour of right to the first aggression, which may be illustrated by the case of a malefactor, who can have no right to wound or kill the officers of justice in their attempts to take him, urging as a plea that he feared the punishment would exceed the offense.

The first step, which an aggressor ought to take, should be an offer of indemnity to the injured party, by the arbitration of some independent and disinterested state. And if this mediation be rejected, then his war assumes the character of a just war. Thus Hezekiah when he had not stood to the engagements made by his ancestors, being threatened with an attack from the King of Assyria on that account, acknowledged his fault, and left it to the King to assign what penalty he should pay for the offence. After he had done so, finding himself again attacked, relying on the justice of his cause, he opposed the enemy, and succeeded by the favour of God.

Pontius the Samnite, after restoration of the prizes had been made to the Romans, and the promoter of the war delivered up into their hands, said,

“We have now averted the wrath of heaven, which our violation of treaties had provoked. But the supreme being who was pleased to reduce us to the necessity of restoration, was not equally pleased with the pride of the Romans, who rejected our offer. What farther satisfaction do we owe to the Romans, or to Heaven, the arbiter of treaties? We do not shrink from submitting the measure of YOUR resentment, or of OUR punishment to the judgment of any people, or any individual.”

In the same manner, when the Thebans had offered the most equitable terms to the Lacedaemonians, who still rose higher in their demands, Aristides says, that the justice of the cause changed sides and passed from the Lacedaemonians to the Thebans.