My limited understanding is that without an extensive police force and good communications, much of what modern people would leave to police was handled directly. If so, were any questions asked of a land owner who killed a poacher or robber or thief? Or was it not only in practice but by law allowed for someone to kill any trespasser?

EDIT: Let us say, England in 1700. Almost modern but no police force yet in London and we read in Newton and the Counterfeiter that traveling twixt Cambridge and London was dangerous, just as it was in Chaucer's time: travelers sought protection by waiting at an inn until enough were in the their party to help fight off brigands.

EDIT: Let's ask if killing a trespasser was actually illegal or if not, whether in practice the killing was punished at all. Of course, robbers and other invaders are also at least trespassing.

  • 2
    Depends on the period - I suggest picking a specific period rather than "pre-industrial" which is somewhat ambiguous (and well over 1000 years). For instance "Medieval England" or "Early Modern England". Also, you jumped from poacher/robber/thief to trespasser in the last sentence. Which one do you mean? I don't believe these were typically considered equivalent. – Semaphore Dec 10 '17 at 18:36
  • As in any country, at any time, if you have enough money and/or influence you can get away with any crime. However, there's a big difference in killing someone who is robbing you (which can be rendered as self-defence) and killing someone who is merely trespassing on your land. – KillingTime Dec 10 '17 at 18:45
  • @KillingTime: a really good example of this is Durst, who if he would not a complete nutjob might have another notch in his gun grip or knife handle already. But I am asking about the law and whether having influence was even necessary or it was possible to kill a trespasser without worrying at all about punishment for doing so. – Jeff Dec 10 '17 at 18:51
  • It's complicated. Some of the issues are discussed in this paper on Use of Force in Protecting Property, but, in general, "... If the eighteenth-century legal system upheld a "Bloody Code" of capital offences to protect property, it did not commonly licence private actors to execute such punishments, but applied them by strict legal process" – sempaiscuba Dec 10 '17 at 19:14
  • @sempaiscuba: I will read the paper but even the USA of the 19th century or up to the middle of the 20th, settling differences unofficially was not prosecuted enthusiastically depending up such things as race, etc. So in England of 1700, I would be surprised that police (or whatever) would spend much time bothering someone who had killed a trespasser. – Jeff Dec 10 '17 at 19:36

The Killing a Thief Act of 1532 (24 Hen. 8, c. 5) legalised using lethal force against highway robbers or home burglars as justifiable homicide.

Eventually the British Parliament closed this gap in the common law, enacting a statute in 1532 that essentially licensed the killing of robbers and other assailants on the pubic highway. This statutory defense came to be called justifiable - as opposed to excusable - homicide.

Fletcher, George P., and Jens David Ohlin. Defending Humanity: When Force is Justified and Why. Oxford University Press, 2008.

English law made a distinction between justifiable homicide and excusable homicide. Because the Crown reserves for itself all rights to use force, only killings on behalf of the king were justified. Homicides of other reasons were merely excusable at best, and the perpetrator had to apply for a pardon from inside a cell. Hence the adage, killing in self-defence "deserved but needed a pardon". Royal clemency was effectively a compromise between the common law, which forbade killing, and the natural law, from which a right to self-defence originated.

By 1700, the guiding principle had become whether the other party was committing a felony. In other words, robbers and home invading thieves could be killed in self-defence on the king's behalf, because they were felons. In the absence of a police force, it was practically a public service to rid the land of these criminals. The same would be true of would-be murderers or arsonists, of course.

Trespassing, however, was not a felony, and did not entitle the victim to use lethal force. In fact, Sir Edward Hyde East's 1803 treatise Pleas to the Crown specifically says:

[I]f one come to beat another, or to take his goods, merely as a trespasser; though the owner may justify the beating of him so far as to make him desist; yet if he kills him, it is manslaughter. But if the other had come to rob him, or take his goods as a felon, and were killed in the attempt, it would be justifiable self-defence.

East, Edward Hyde. A Treatise of the Pleas of the Crown. London: J. Butterworth and J. Cooke, 1803.

Note while this was written a century after your specified time, in making these assessments East was still citing and explaining the 1532 law.

  • Interesting, not so different as written than modern US law I think but I bet in practice, trespassers got killed all the time, maybe without it being reported. and whatever law enforcement there was, well, i bet they made our current police force look like little kittens. i have seen 1940s newspapers which openly mention suspected being given the 3rd degree -- torture was more or less fine in the USA probably until the 1970s although the exact form or the torture was probably limited. – Jeff Dec 10 '17 at 21:54
  • @Jeff Well people in general got killed all the time. Homicide rates in general were considerably higher.. – Semaphore Dec 10 '17 at 22:05
  • Yes, I have read about that -- was just reading about Ireland and subsistence living means that all sorts of crimes must often occur -- you have to do something to make up for bad luck. – Jeff Dec 10 '17 at 22:52

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