Browsing: Legal Papers of John Adams, Volume 2

“It is lawful (46) to kill with impunity one who attacks by night in the fields, or blockades the highways, and lies in ambush for passersby, even if he be a soldier. For indeed it is doubly better to attack, than for an injury suffered to be healed, and to seek vengeance.

“Note 46. He is not a murderer who, in peril of his life, kills an attacker, nor ought anyone to wait for the first blow, because it might be irreparable.”

Corporal punishment of homicide never takes place except in the case of voluntary homicide, when the homicide is perpetrated by design, deliberately, and also with malicious intent. A genuine and express evil intent ought to appear [in such a case, for the punishment of the Lex Corneliae on murder to apply]. And this is always true—to such an extent that even gross fault is not equated to evil intent. [And this is the first extension of this original rule. Secondly, it is extended so that it may apply to statutes imposing capital punishment for homicide, which statutes receive an interpretation at common law. Therefore, they are to be understood to concern homicide committed with evil intent. Hence it is considered the rule in offenses requiring evil intent, that in the absence of evil intent an offense is not committed, at least for purposes of corporal or ordinary punishment.] Evil intent, [moreover,] is not regularly presumed. Therefore he who alleges evil intent ought to prove it [since one is clearly presumed to be lacking in evil intent until the contrary be proved]. For nature lacks evil intent from its origins, [and as its origins are, so its later development is presumed to be. Moreover, evil intent is proved by various circumstances—by place, time, type of weapons, violence itself. And evil intent is regularly presumed from an illegal act—when someone does an illicit thing by that fact alone he is judged to be of evil intent.] From this first rule, that plainly an ordinary penalty in homicide demands evil intent, many unique things which are becoming matters of practice can be inferred. And the first of these is that homicide which has been committed with the excuse of guiltless self-defense is not punishable: for consider the case where a person is provoked and defends himself with the excuse of guiltless self-defense and kills the aggressor—such a murderer ought not to be punished but fully absolved, and this is confirmed on three grounds: First, because defense belongs to natural law and is permitted by every legal system, [which we share with dumb animals.] Secondly, because if the aggressor is the provoker, he is considered slain by his own hand and not by another [and consequently the provoked party is not judged to be of evil intent]; thirdly, because the person killing does not perpetrate an evil deed in defense of himself, since it is lawful to meet force with force, and where there is no offense, then there should be no punishment.

And the rule of common opinion is that a person who has been attacked is presumed to do everything in his own defense and not for revenge: necessity rules out the presumption of evil intent. The reason is that necessary defense is allowed by all law—even the divine—and is without sin. Moreover, defense is considered reasonable if with the excuse of guiltless self-defense, when a person could not defend himself from mishap in any way other [than in the manner by which he defends himself, as, for example, if, having been placed in peril of his life, he defends himself in the best way that he can, the one who challenged him is not slain unjustly]. Moreover, someone is presumed to have been placed in a position of peril when he is attacked by another man who has arms in hand and his sword unsheathed by this very fact, that fear of weapons puts anyone in such a position.

[Therefore, in order to obtain absolution or withdrawal of the accusation of the homicide committed, the person provoked ought to plead clearly the two most important items, namely the provocation and the necessary defense, and prove them by way of purgation and innocence.]

But what if once provoked he goes beyond the manner of guiltless self-defense and slays the attacker who is in flight? Would he then have to be punished by the ordinary punishment of the Lex Corneliae [concerning murderers]? Certainly not— rather, he who has exceeded reason ought to be punished by the decision of a judge in a manner other than that laid down by the law. The reason is that, as stated a while ago, evil intent and the intent to kill are not presumed to exist in the person provoked, nor is an eagerness for revenge presumed, but rather the need for defense. Nor is he even bound to flee, if flight would bring him in danger of his life: for a person provoked, just as one moved by intense vexation, does not have complete possession of his faculty of understanding: unexpected dread of impending danger removes correct judgment and prudent deliberation: and therefore the commentators say that the man provoked does not have scales in his hand to measure blows and wounds.

[Wherefore it is relevant, that when it is a matter of excusing wrongs, a principle —and not a conclusion—is sought.] Therefore the provoked person ought to be punished for that excess, not as a person of evil intent (since the previous provocation excuses him from evil intent) but as one guilty through fault [(since he exceeded the reasonable limits of guiltless self-defense)].

Moreover, defense is likewise favored, as even where a third party, for example, a friend to the provoked man, is excused from the usual punishment if he intercedes and slays the attacker.

Sixthly, it is inferred that homicide committed in the heat of anger is not to be punished in the ordinary way because inquiry must be made as to wrath which has been provoked, when someone is provoked to anger by another man because of damaging language: for in that case he is thus excused from the ordinary punishment. [And it is necessary to investigate what was the nature of this proneness to anger which has deprived the wrongdoer of reason: for angry men are wholly upset in the mind and lack the use of reason and know not how to speak and cannot use their senses, and have so much trouble speaking that they are consequently presumed to lack evil intent, and the will to inflict harm arises from an excessive proneness to anger, which an armed wrath, so to speak, feeds.] Wherefore it is relevant, as stated above, that a man who has been spurred by intense vexation is not in full possession of his understanding. [Further, it is most difficult to control righteous vexation of the mind.]

This is evident, because homicide perpetrated by fault is said to be an offense which the law does not cover and is punished with discretionary penalties. Whenever a married man slays the wife he has caught in an act of adultery, he is not given the death penalty but another milder corporal punishment; and this is because this sort of homicide is said to have been committed through fault, but not with evil intent, since it occurred in a situation in which it was difficult to control righteous indignation. [For in his guilty frame of mind there was an element missing due to the justification, and so he is punished more mildly than the man with a guilty frame of mind.] Therefore, since it appears from the aforesaid that a homicide perpetrated through fault is to be punished by a penalty that is discretionary and out of the ordinary course, it necessarily follows that a judge cannot impose the death penalty, which is the ordinary punishment [for in his discretionary judgments a judge can never impose a punishment like an ordinary punishment for a similar wrong].