servants would be extreme if any departure from the strict letter of their authority justified resistance to them. The expressions "under colour of his office" and "in good faith" show that the protection is intended to be given only to a public servant acting honestly in discharge of powers conferred or of duties imposed on him.

The right of private defence does not arise when recourse may be had to the public authorities. For this right does not take the place of the functions of those public servants who are especially charged with the protection of life and property and the apprehension of offenders, and where the assistance of the public authorities can be procured, the right cannot lawfully be exercised. A more definite rule may be desirable, but the subject appears not to admit of a certain rule. A man may from many circumstances of suspicion foresee a danger and have a reasonable apprehension of its approach; and yet recourse under the circumstances to the public authorities for protection might be deemed uncalled for. Clause 3 of Section 99 appears to contemplate such cases as those in which a threatened danger (e. g. an attack by clubmen, &c.) is premeditated and may be foreseen.

As the right is given for protection and not for punishment, the limitation of the right to the inflicting only such harm as is necessary for the purpose of defence is proper.

Explanations 1 and 2.-The Code of Criminal Procedure will probably be found to contain rules for the guidance of officers of justice and persons who act by their direction.

Actual knowledge that a person is a public servant, or acting by direction of a public servant, or reasonable ground of knowledge, as from his dress, words, weapons, &c. will deprive those against whom he acts of the right of self-defence. On this subject it is laid down in an English work of authority (Foster's Crown Law) that" With regard to those ministers of justice who in right of their offices are conservators of the peace, and in that right alone interpose in the case of riots or affrays, it is necessary, in order to make the offence of killing

them amount to murder, that the parties concerned should have some notice with what intent they interpose; otherwise the persons engaged may in the heat and bustle of an affray imagine, that they came to take a part in it. But in these cases a small matter will amount to a due notification. It is sufficient, if the peace be commanded, or the officer in any other manner declare with what intent he interposeth. Or if the officer be within his proper district, and known or but generally acknowledged to bear the office he assumeth, the law will presume that the party killing had due notice of his intent, specially if it be in the day time. In the night some further notification is necessary, and commanding the peace, or using words of the like import notifying his business, will be sufficient.

"I remember a saying of a very learned judge, that a constable's staff will not make a constable. This is very true. But if a minister of justice be present at a riot or affray within his district, and, in order to keep the peace, produce his staff of office or any other known ensign of authority: this, I conceive, will be a sufficient notification with what intent be interposeth."

100. The right of When the right of private defence of the body extends to

causing death.

private defence of the body extends, under the restrictions mentioned in the last preceding Section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely―

First. Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly. An assault with the intention of committing rape;

Fourthly. An assault with the intention of gratifying unnatural lust;

Fifthly. An assault with the intention of kidnapping or abducting;

Sixthly. An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Certain aggravated assaults which are here enumerated justify the exercise of the right of private defence to the extent of causing death (if this be necessary). The reference to the restrictions in the preceding Section should probably be understood to apply to the restrictions therein mentioned exclusive of those in the first and second clauses, as to which this reference is inapplicable.

101. If the offence

When such right extends to

causing any harm other than

death.

be not of any of the descriptions enumerated in the last preceding Section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other than death.

102. The right of private defence of the body

Commencement and continuance of the right of private defence of the body.

commences as soon as a rea

sonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

There must be an attempt or threat, and consequent thereon an apprehension of danger; but it is not a mere idle threat, or every apprehension of a rash or timid mind, that will justify the exercise of the right. Reasonable ground for the apprehension is requisite.

Suppose the threat to proceed from a woman or child and to

be addressed to a strong man: in such a case there could hardly be a reasonable apprehension.

Present and imminent danger seems to be meant. But if a man is preparing himself, as by seizing a dangerous weapon in such a way that he manifestly intends immediate violence, this seems sufficient justification of the exercise of the right; for his conduct amounts to a threat, and the other has reason to consider the danger to be imminent.

When the danger is not present but may be avoided, can a man who voluntarily seeks it, be said to have a reasonable apprehension of such danger? As if A knowing that B is waiting to attack and rob him, proceeds on his road with the deliberate purpose of resisting the attack with all necessary force, and does so, and thereby causes B's death. A appears to be entitled to the benefit of the exception, for he had a reasonable apprehension of danger when B attacked him, notwithstanding the attack was not unforeseen.

defence of property extends to causing death.

103. The right of private defence of property exWhen the right of private tends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:

Firstly. Robbery;

Secondly. House-breaking by night;

Thirdly. Mischief by fire committed on any building, tent, or vessel, which building, tent, or vessel is used as a human dwelling, or as a place for the custody of property;

Fourthly. Theft, mischief, or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

When such right extends to causing any harm other than

death.

104. If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding Section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrong doer of any harm other than death.

Commencement and conti

105. First. The right of private defence of property commences when a reasonable nuance of the right of private apprehension of danger to the defence of property. property commences.

Second. The right of private defence of property against theft continues till the offender has effected his retreat with the property, or the assistance of the public authorities is obtained, or the property has been recovered.

Third. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint, or as long as the fear of instant death, or of instant hurt, or of instant personal restraint continues.

Fourth. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

Fifth. The right of private defence of property against house-breaking by night, continues as long as the house-trespass which has been begun by such housebreaking continues.

A recapture of the plundered property, while it is in course of being carried away is authorized, for the taking and retaking is one transaction. But when the offence has been committed and the property removed, a recapture after an interval of time by the owner or by other persons on his behalf, however justi