"For beside the present alarm and terror of such an invasion, it tends to the disturbance of a man's peace for the future, that the violence of a ruffian has once been able to reach him in that place which is more peculiarly his own, and which the law has carefully fenced for him, as his sanctuary and surest refuge from all manner of harm."
- Hume's Commentaries of Crimes
Baron Hume is one of Scots Law's "Institutional" writers, i.e. his work is one of the foundations of our law and is to be treated with the highest respect.
According to all authorities, that of the Mosaic and the civil law, as well as our own custom, and indeed by the express permission of the statute 1661, c.22, one is also justified in killing him who breaks into one's house in the night, to steal. It would not however be reasonable to construe those authorities narrowly, so as to limit the privilege to the single case of an attempt to steal: They are rather to be received as grounds, a fortiori, to authorise the like course of resistance of one who breaks into a house to commit murder, rape, or hamesucken, or to set fire to the house. Nor is it necessary that the man may have carried his assault so far, as clearly to show which of these several felonies he had in view: It is sufficient that he has entered the house, or has broke the safeguard of the building, so that he may enter when he will, and is in the act or immediate preparation so to do. For this is an exercise of so bold and so deliberate a nature and one in which he has already so much the advantage, as warrants those within to draw the worst designs, and such as are not to be prevented but by superior force; and indeed all they can do on this sudden alarm is no more than sufficient to put them on an equal footing with the felon, who comes cool and equipped for the adventure. Tenderness for the life of another may indeed suggest to one to endeavour, by cries and otherwise, to deter him from his purpose, before proceeding to make use of higher means; But how commendable soever this generosity in those who have presence of mind for it, still it is what the law cannot absolutely enjoin, or hold any one as culpable for omitting. The main consideration in all such cases is the alarm and danger of the true man, who of sudden, at the hour of rest, finds the safeguard of his dwelling broken, and his person at the power of a felon, who in these circumstances may accomplish his purpose, and escape unknown. On such an occasion, the master of the house may always be said to be within the protection of that text of the Roman law, which allows the killing of the nightly thief, "si parcere ei, sine suo periculo non potest;" for there is always a hazard, less or more, to those within, from an assault which has already been carried so far with success.
The only other article in our list of capital offences against the person is Hamesucken, or "the felonious seeking out and invasion of a person in his dwelling-place or house".
Notice is taken of this crime, and the same description is given of it, in the laws of the Visigoths, and in those of Edmund, the Anglo-Saxon King, and of Canute the Dane. It seems also to have been known under that name, and as a capital offence, in the law of Utrecht, and of some other states of modern times. Our oldest memorial concerning it is in the Regiam Majestatem, which appoints the complaint and prosecution to be made in the like course as for rape or robbery; as indeed the guilt in such a case far exceeds that of an ordinary assault, and is of that bold and heinous character, which makes the crime a fit companion of those high transgressions. For beside the present alarm and terror of such an invasion, it tends to the disturbance of a man's peace for the future, that the violence of a ruffian has once been able to reach him in that place which is more peculiarly his own, and which the law has carefully fenced for him, as his sanctuary and surest refuge from all manner of harm. It is true it may not be so necessary now, as in more undisciplined times, to punish this transgression in every instance to the utmost extent of what the prosecutor may insist for: yet still the crime retains that rank as a point of dittay, which ancient custom had assigned it (for it rests on custom only) and in any case of an extreme or atrocious injury, may be warrantably punished with the highest pains of law. The principal circumstance in the description of hamesucken, is the violation of the security of a person's house.
by David M. Walker, Regius Professor of Law, University of Glasgow.
It seems clear, accordingly, that on many counts Hume's Commentaries must be treated as not being merely a book which, when it was new, superseded all others and took the place of being the standard, most authoritative, text on its subject, and deserves to be remembered as a classic of that time, but as a book which has won continuing recognition as the supreme one in its field. It continues to be recognised as of institutional rank, as having weight and authority comparable to that of a Bench of the High Court, though no doubt postponed in authority to an express decision of such a Bench. Its value and authority are diminished only when, and insofar as, the law on any topic is reformulated in statutory form, and even then the commentator would often seek to understand the statute by seeing how it differed from Hume. Hume made an immensely valuable contribution to the Law of Scotland when he published his Commentaries and Scotland and Scots lawyers had and still have every reason to be grateful to him, and to honour him for his scholarship and industry in doing so.
via email Sat, 29 Sep 2007
Hume is indeed an Institutional Writer, an authoritative source of law where no more modern and authoritative expression of the law exists. However, the beauty of Scots Law is that it can develop with the times in the form of precedent established in the High Court of Justiciary, or through interference (sorry, legislation) by Parliament. Thus, much of Hume's work has been overtaken by developments over the past two and a half centuries. His work is still highly regarded and, where there is dispute on an, as yet, undecided point an opinion from Hume is persuasive. But, Hume was of his time and reflects a more lawless society than that today in which self help was the only resource available. Hamesucken was removed from the list of capital crimes one hundred and twenty years ago by the Criminal Procedure (Scotland) Act 1887 and, although it remains a crime, for the past century and a bit such attacks have simply been charged as assault, allbeit aggravated by the circumstance of taking place in the victim's home.
via email Mon, 1 Oct 2007,
Dr Lech Beltowshi <LechB@adhb.govt.nz>
The reality is that for most citizens in the first 10-20 minutes (at best!) of any crime self-help remains the only resource available no matter what the police and the establishment purport to believe. Secondly, it is clear that the original law took into account the very serious psychological effects on victims assaulted in their homes - something that seems to be ignored by more "modern" legislation. Finally, in still more recent times this problem has been significantly exacerbated through the weakening of the right of self-defence - especially the removal of the means of effective and safe self-defence via repressive firearms legislation that succeeds only in disarming victims.
The ideal option, the only effective way of reducing housebreaking and assaults on homeowners in their own home (home invasion crimes), is to stop denying the homeowner the means to use deadly force in extremis.
Given the level of control over the ordinary citizen that the present balance of power (or, more accurately, enforced dependence on the authorities) allows those in power, I believe any return to "self-help" will have to be simply taken by the citizen, I don't believe it will ever be relinquished by the authorities without a struggle. Their whole power base rests on the (undemocratic) reality that the people are much easier to control and exploit if they are disarmed. A lesson the people of Burma have demonstrated, the hard way, over the last week. A lesson the rest of the world should take notice of.
Fri, 9 Nov 2007
Lurking as I often do in Edinburgh's dark underbelly, I spoke today to someone who was recently (as in this year) convicted of Hamesucken for breaking into somebody's house and committing an assault. His sentence was 240 hours of Community Service and 2 years of Probation, with a possible 5 years jail sentence if he defaults.
The JP comments thus (Tue, 5 Feb 2008):
If he was convicted on indictment, i.e. by a jury, then he could have been sentenced to 2 years' probation with a condition that he undertake 240 hours of unpaid work. If he were to breach the terms of the probation order then he could be brought back to court and sentenced for the original offence. I assume that he was convicted in the Sherif Court. The maximum sentence that a Sheriff can impose on someone convicted on indictment is five years' imprisonment. However, if the Sheriff felt that his maximum was insufficient then he has the power to remit the case to the High Court where the maximum sentence is life imprisonment. Thus, the consequences of "default" for this chap are not "a possible 5 years" but a possible life sentence. However, given that probation was imposed in the first instance it is unlikely that the crime was sufficiently grave for the Sheriff to use his full powers in the event of a breach of probation, let alone remit him to the High Court.