2. ANOTHER fpecies of compuliicm or neceflity is what our law calls durefs per mi?ias h ; or threats and menaces, which in- duce a fear of death or other bodily harm, and which take away for that reafon the guilt of many crimes and mifdemefnors ; at leaft before the human tribunal. But then that fear, which compels a man to do an unwarrantable action, ought to be juft and well grounded ; fuch, " qul cadere pojjit in virum conftantem, " non timidiun et meticiilofum" as Bracton exprefTes it', in the words of the civil law k . Therefore, in time of war or rebel- lion, a man may be justified in doing many treafonable acts by compulfion of the enemy or rebels, which would admit of no excufe in the time of peace 1 . This however feems only, or at leaft principally, to hold as to pofitive crimes, fo created by the laws of fociety ; and which therefore fociety may excufe ; but not as to natural offences, fo declared by the law of God, wherein human magiftrates are only the executioners of divine puniihment. And therefore though a man be violently aflaulted, and hath no other poflible means of efcaping death, but by killing an innocent perfon ; this fear and force mail not acquit him of murder; for he ought rather to die himfelf, than efcape by the murder of an innocent 1 ". But in fuch a cafe he is per- mitted to kill the affailant ; for there the law of nature, and felf-defence it's primary canon, have made him his own pro- tector. 3. THERE is a third fpecies of neceffity, which may be diftinguiihed from the actual compulfion of external force or fear ; being the refult of reafon and reflection, which act upon and conftrain a man's will, and oblige him to do an action, which without fuch obligation would be criminal. And that is, when a man has his choice of two evils fet before him, and, being under a neceffity of chooiing one, he chufes the leaft " Sec Vol. I. pag. 131. ' i Hal. P. C. 50. ' /. 2./. 1 6. ni ind. 51.
- Ff. 4. 2. 5, tf 6.
pernicious
