BURGLARS AN]) . FIREARMS.
AVERY considerable amount of confusion seems to exist in the public mind with regard to a man's right to resist, by the use of firearms, a burglar in pursuit of his calling. This confusion has been plainly marked in a great deal of the writing which has been appearing in the newspapers during the past week. Some people appear to imagine that a sort of burglar-shooting season begins every evening at about 9 o'clock, and that after that hour, and. till the maids set about their work next morning, any householder is free to shoot any person whom he believes to be a burglar, without the slightest fear of the conse- quences. Others, again, go into the opposite extreme, and seem to fancy that burglary is a kind of highly scientific game in which the rules must be adhered to with the utmost scrupulousness, one of the chief being that if you are attacked by an armed burglar, you must retreat before him, inch by inch and step by step—as if he were a King and you a Gold Stick in Waiting—till you feel your back against a wall or other obstruction, when, indeed, you may fire at discretion. This rule, however, is held to be subject to some important modi- fications; for, as says the marginal note in an old law report, "if he [i.e., the householder] goeth not out by the back door, it is murder ;" and it would seem, therefore, that the pas de dews performed by burglar and house- holder must be danced to the bitter end, and that the point scored for the householder by "touching wall" does not count if the wall has a door in it which can be opened. How confidently these opposing beliefs are entertained, is well illustrated by some of the letters that have been appearing in the Standard. One set of correspondents are convinced that it is not only illegal to shoot till you have got to the wall, but till you have carefully considered the question," Am I in actual bodily danger "—and," Is the man before whom I am retreating a burglar, or merely a tres- passer, or possibly even a bare-licensee ?" The others are all for the practice of looking out of window and firing "with impunity" at burglars in the garden, and hold the right to shoot, "without warning," at "the bottom waistcoat-button" of a burglar in the house, as the palladium of English liberty. Our readers may perhaps be glad to think that neither of these views is really in agreement with the law of England. The right to resist persons committing burglaries, without engaging in any fantastic ceremonial of retreating inch by inch, is perfectly well recognised by the Common Law. At the same time, the law will sanction no reckless taking of human life. It may be worth while, then, to notice here in detail some points in the law which elucidate the real position of the house- holder in regard to burglars. In the first place, a man has always a right to use sufficient force—and of what is sufficient he is prinui facie the judge—to protect himself from any attack which places him in bodily peril. But beyond this he has special rights—rights which extend beyond those of self-defence—in the case of burglars. On this point we may quote the words of the editors of "Stephen's Commentaries," which in such a case can be taken to state the principle of the Common Law with accuracy :—" Such homicide as is com- mitted for the prevention of any forcible and atrocious crime is justifiable by the law of Nature, and so by the law of England as it stood so early as at the time of Bracton, and as it stands at the present day. If any person attempts the robbery or murder of another, or attempts to break open a house in the night-time, and shall be killed in such attempt, either by the party assaulted, or the owner of the house, or the servant attendant upon either, or by any other person present and interposing to prevent mis- chief, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets ; or to the breaking open of any house in the day-time, unless it carries with it an attempt of robbery, arson, murder, or the like." But if this were not sufficient to authorise a house- holder to resist a burglar even to the extent of killing him, we must remember a further principle of the Common Law which is thus stated by the editors of Blackstone :—" Where upon such offence as last described [i.e., felony and dangerous wound given], a private person in whose sight it has been committed, arrests or endeavours to arrest the offender, and kills him in resistance or flight," such killing is a justifiable homicide, provided that the offender had notice that the aforesaid private person was attempting to arrest him, and that there is "an apparent necessity that the party could not be otherwise secured." But since breaking into a house at night is a felony—night being defined in such cases as between 9 p.m. and 6 a.m.—it is obvious that the man who killed a burglar in an attempt to seize and detain him would be free from all danger of being charged with murder. For instance, if on the occasion of the recent burglary at Muswell Hill, either the brother or the father of the wounded man had been armed, and had fired at the burglars and killed them, after he had in vain attempted to stop them by other means, only justifiable homicide and no offence at law would have been committed. It is true that the Muswell Hill burglary, not being technically committed at night, was not in itself a felony ; but then, the dangerous wounding of Mr. Atkin had placed the burglars in the position of persons committing a felony, and so had made them liable to arrest not only by officers of the law, but by any person witnessing the committal of the act. In practice, then, it is very difficult to con- ceive how any person who killed a burglar, discovered in the act, could well have committed anything but justifiable homicide ; unless, of course, the burglar, on being seen, submitted quietly, and did not try to escape. Either he would have killed the burglar in defending his own person or property from attack, or in attempting to detain and arrest the said burglar ; and in both of these cases he would have had a perfect excuse for killing, unless, which is very unlikely, it could be shown that he had used undue and extravagant violence in resisting or arresting.
It may be, however, that there are some people to whom this will not seem sufficient. They will argue that a man's house is his castle, and that he ought to have a clear and not an indefinite or conditional right to kill any man who breaks into it at night with violence, and with the intent to rob. It is not enough to say that it is justifiable to kill a man if he persists in his attack when he is seen, or if he refuses to allow himself to be arrested ; for these limitations and conditions mean that when a man has killed a burglar, he will be put on his trial in a Court of Justice, and made to justify the homicide. Even granted that it will be easy for him to make such justification, it is argued that this is far too great a concession to the burglars, and that the expense and worry of a criminal trial would be worse to many men than a term of imprisonment. Still, for all that—and we see the force of the argument clearly enough—we do not think that it would be a good thing if the law were to give men an explicit or unconditional right to shoot burglars. In the first place, the danger that a man would be placed upon his trial is remote if the person killed was really a burglar. No doubt the Treasury would be bound to prosecute in case an innocent person were killed under a mistake ; but in the case of a real burglar being killed in the act, they would probably do nothing of the kind. The important thing in the whole matter is to maintain the principle of the sacredness of human life, a principle which has always existed in the law of England, and the obligation on each man to answer for blood rightly or wrongly shed by him. It must never be enacted that there are certain circumstances under which a man may kill without any possibility of being called to account and made to justify his action. There are, doubtless, plenty of cases in which the circumstances will always form a perfect justification ; but the law must keep the right of saying, —‘ We call upon you to show that the circumstances under which you killed another human being were, in fact, such as to excuse that act.' We see the evil effects of not maintaining this principle in France. There a man has an explicit right to kill an unfaithful wife if she is found with her lover. The result is, that if a husband can only succeed in tracking the guilty pair to an assignation, he becomes in his own person accuser, judge, and executioner, and acts as might the merest savage in some African tribe. His responsibility to the law ceases, and no one can gain- say his right to kill, even should he have secretly en- couraged the intrigue. It can never be wise or right to absolve individuals from their responsibility to justify, if called on, such an action as taking the life of another. We may rest assured, however, that the law of England affords no quixotic shelter to armed burglare, and that no man who kills a burglar when breaking into his house need feel alarm lest the law should be on the side of the criminal. The man who, hearing burglars at night, goes armed with a revolver to the room where they are, and then, to protect himself from an attack which he believes they are going to make upon him, or as the only possible way to prevent them from escaping, after warning them to surrender, fires at and kills one of them, need have no fear of the consequences. Such homicide can be completely justified by the law of England. The public must not be afraid. of such phrases as "reasonable belief that his life is in peril." When burglars carry revolvers and use them, there can be little doubt that there is peril enough to justify firing.
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