Ch. 14. WRONGS. 185
in his own defence, mould have retreated as far as lie conveniently or fafely can, to avoid the violence of the afTault, before he turns upon his ailailant ; and that, not ficlitioufly, or in order to watch his opportunity, but from a real tendernefs of medding his bro- ther's blood. And though it may be cowardice, in time of war between two independent nations, to flee from an enemy ; yet between two fellow fubjects the law countenances no fuch point of honour : becaufe the king and his courts are the vindices in- juriarum, and will give to the party wronged all the fatisfadlion he deferves p . In this the civil law alib agrees with ours, or perhaps goes rather farther ; " qui cum aliter tuerife non pojfimt, " damni culpam dtderint, innoxii funt q . The party affaulted muft therefore flee as far as he conveniently can, either by reafon of fome wall, ditch, or other impediment ; or as far as the fierce- nefs of the allault will permit him r : for it may be fo fierce as not to allow him to yield a ftep, without manifeft danger of his life, or enormous bodily harm ; and then in his defence he may kill his affailant inftantly. And this is the doctrine of univerfal juftice s , as well as of the municipal law.
AND, as the manner of the defence, fo is alfo the time to be coniidered : for if the perfon afTaulted does not fall upon the ag- greflbr till the affray is over, or when he is running away, this is revenge and not defence. Neither, under the colour of felf defence, will the law permit a man to fcreen himfelf from the guilt of deliberate murder : for if two perfons, A and B, agree to fight a duel, and A gives the firft onfet, and B retreats as far as he fafely can, and then kills A, this is murder ; becaufe of the previous ma- lice and concerted defign '. But if A upon a fudden quarrel affaults B firil, and upon B's returning the aflault, A really and bonafide flees ; and, being driven to the wall, turns again upon B and kills him ; this may beje defcndendo according to fome of our writers u :
P i Hal. P. C. 481. 483. s Puff. b. 2. c. 5. . 13. Ff. 9. 2. 45. ' ! Hal. P. C. 479. ' I Ha!. P. C. 483. "i Hal. P. C. 483.
Vo L. IV. Z though
