[Footnote 8: Denman, C. J., in Reg. _v._ Tyler, reported in Carrington and Payne, _Reports of Cases argued and ruled at Nisi Prius_, viii. 621.] [Footnote 9: _Code Pénal_, art. 64; Chauveau and Hélie, _Théorie du Code Pénal_, i. 534 _sqq._ Italian _Codice Penale_, art. 49. Spanish _Código Penal reformado_, art. 8, § 9 _sqq._ Finger, _Compendium des österreichischen Rechtes--Das Strafrecht_, i. 119. Foinitzki, in _Législation pénale comparée_, edited by von Liszt, p. 530 (Russian law). _Ottoman Penal Code_, art. 42.] [Footnote 10: Mommsen, _Römisches Strafrecht_, p. 653. Janka, _Der strafrechtliche Notstand_, p. 48.] [Footnote 11: Janka, _op. cit._ p. 60. A different view, however, is expressed by Covarruvias (_De matrimoniis_, ii. 3. 4. 6 _sq._ [_Opera omnia_, i. 139]):--"Metus numquam excusat nec a mortali, nec a veniali crimine. Peccatum maximum malum, nec eo quid grauius."] [Footnote 12: Benny, _Criminal Code of the Jews according to the Talmud Massecheth Synhedrin_, p. 125.] Suppose, again, that the motive of breaking the law is what has been called "compulsion by necessity." The old instance of shipwrecked persons in a boat unable to carry them all is a standing illustration of this principle. Sir James Stephen says, that "should such a case arise, it is impossible to suppose that the survivors would be subjected to legal punishment."[13] Yet, in a very similar case, occurring in the year 1884, they were. Three men and a boy escaped in an open boat from the shipwreck of the yacht _Mignonette_. After passing eight days without food, and seeing no prospect of relief, the men killed the boy, who was {286} on the verge of death, in order to feed on his body. Four days later they were rescued by a passing ship; and, on their arrival in England, two of the men were tried for the murder of the boy. The defence raised was that the act was necessary for the purpose of self-preservation. But it was held by the Court for Crown Cases Reserved, that such necessity was no justification of the act of causing death when there was a distinct intention to take away the life of another innocent person. However, the sentence of death was afterwards commuted by the Crown to six months' imprisonment.[14] In the same case it was even said that if the boy had had food in his possession, and the others had taken it from him, they would have been guilty of theft.[15] Bacon's proposition that "if a man steal viands to satisfy his present hunger, this is no felony nor larceny,"[16] is not law at the present day.[17] It was expressly contradicted by Hale, who lays down the following rule:--"If a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, and _animo furandi_ steal another man's goods, it is felony and a crime by the laws of England punishable with death; altho the judge, before whom the trial is, in this case (as in other cases of extremity) be by the laws of England intrusted with a power to