Blackstone and Malcolm
I promised to quote Blackstone on self-defense:
" But the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendo, or in order to preserve them. For whatever is done by a man, to save either life or a member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem (injury) is prevailed upon to execute a deed, or do any other legal act: these, though accompanied with all the other requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of loosing his life, or even his limbs, in case of his non-compliance. And the same is also a sufficient excuse for the commission of many misdemeanours. The constraint a man is under in these circumstances is called in law duress, from the Latin "durities", of which there are two sorts: duress of imprisonment, where a man actually looses his liberty… and duress "per minas", where the hardship is only threatened and impending".
Commentaries on the Laws of England (1765), Book 1, Capter 1, pp126-7.
Blackstone goes on to call self defense not a, but the
"primary law of nature," because "the law respects the passions of the human mind; and ... makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied by force." Blackstone goes so far as to argue that the right to self-defense cannot be taken away by the law of the society.
There were, of course, hedges round this principle. But, as Malcolm says, "killings that occurred when a man was acting as peacekeeper, or defending himself,his family, and property
were classified as justifiable or excusable. ... Killing anyone who was committing a felony was regarded as excusable" (Guns and Violence: The English Experience, p.24). Someone involved in a brawl had an obligation to retreat to the wall, but the intended victim of a felony was not so obliged. Moreover, the fact that the villain in the case discussed below had exited the house is actually pertinent to the case in ancient legal terms, because, "if during the pursuit the culprit was killed 'where he cannot otherwise be overtaken, this will be deemed justifiable homicide. For the pursuit was not barely warrantable; it is what the law requireth, and will punish the wilful neglect of'" (Malcolm, quoting Dicey, ibid p.27).
As for the juries, Malcolm points out that mediaeval juries rarely found a man guilty of homicide when there was an element of self-defence involved, even when the facts of the case suggested the law had been broken. This sort of nullification is exactly why jury trials are so important, to my mind.
The law surrounding self-defense became confused as the law grew more complex in the 16th and 17th centuries, but the practice of confiscating property of anyone accused of homicide, even in self-defense, was so unpopular that Henry VIII had to put an end to the practice. Malcolm comments that "this act extended the category of justifiable, or blameless, homicide to those defending themselves from anyone who attempted to rob or murder them on or near a public highway or path or in their home at night" (ibid, p.47). She also comments "the issue of whether the slayer might have made his escape and hence avoided shedding blood was irrelevant."
A law introduced by Peel in 1827, which reduced the number of capital offenses from 200+ to 11, also held that cases "in which a person should be killed by another in order to prevent a commission of a felony, should be held by law to be justifiable homicide."
Such was the case until 1967, when a broad revision of the criminal law "altered the legal standard for self-defense. Now everything turns on what seems to be 'reasonable' force against an assailant, considered after the fact. As Glanville Williams notes in his Textbook of Criminal Law
, that requirement is 'now stated in such mitigated terms as to cast doubt on whether it [self-defense] still forms part of the law.'"
The case seems clear. English law was perfectly sensible about killing people who threaten you by committing felonies against you up until 1967. The re-interpretation of reasonable is, in legal terms, recent.