deliberately and unnecessarily renews the attack on A., this is not self-defence, since self-defence only obtains against an unlawful attack.1 2 Right may be exercised even public au might called upon pre § 97 a. As will hereafter be seen more fully, the right of selfdefence can only be appealed to to ward off a danger that is actual and immediate; though in determining what is immediate we must be guided by the conditions of each though particular case. The fact, however, that an attack has thorities been expected does not preclude me from repelling it when have been it comes. A public man, for instance, as was the case with the Duke of Wellington during the Reform Bill viously. riots, may have good grounds to expect an attack on his house; but this does not prevent him from vigorously defending his house when the assault is actually made. It has also been said that the right does not exist when the party attacked had an opportunity of calling on the public authorities to intervene. This, however, is not universally true. As there are few attacks which the injured party could not have more or less clearly expected, it would be incumbent on him, if the position here contested is sound, to call on the government for protection in every case, or else to lose the right. But to call on the government for aid is only necessary when such aid can be promptly and effectively given. There are many cases of suspicion, also, in which a prudent man would decline to call in governmental aid, feeling that the case is not sufficiently strong to justify so extreme a remedy. As a rule, therefore, we cannot say that self-defence cannot be resorted to when the party asserting the right could have protected himself by calling in the government. Of this position we have abundant illustrations in 1 Infra, & 485. I have endeavored to give an exposition of several philosophical theories of self-defence in the Southern Law Review for 1879, p. 366; condensed in the 8th edition of the present treatise, 897. That the English law of self-defence has fluctuated in sympathy with political economy, see article in Crim. Law Mag. for Jan. 1882. infra, 1535, where it is held that the fact that the leaders of the "Salvation Army" expected that its meetings would be attacked by a mob, did not make it necessary for them to disperse or invoke police aid. It was for this reason that the clause in the German Code, limiting in this respect the right of self-defence, was ultimately stricken out. See Berner, 86; and see infra, ? 487. Evers 'See R. v. Scully, 1 C. & P. 319, v. People, 6 Thomp. & C. 156; 3 Hun, 1824. Infra, ?? 487-496. 716, 1875; State v. Doty, 5 Oreg. 491, 1874. 3 Beatty v. Gilbants, 47 L. T. N. S. 194, Q. B. D. (1882), cited more fully cases of nuisance which a private citizen is authorized to abate without appealing to the law. "At common law," so speaks a learned New Jersey judge," "it was always the right of a citizen, without official authority, to abate a public nuisance, and without waiting to have it adjudged such by a legal tribunal. This com mon law right still continues. Any citizen, acting either as an individual or as a public official under the orders of local or municipal authorities, abate what the common law deems a may public nuisance." We must not push this right so far as to sustain deliberate aggressions on others. But we ought to maintain it so far as is proper for the defence of self. There is no pebble in our way on the highway that we could not remove by action of law. But there is no pebble on the highway as to which an action of law would not be absurd. We kick it out of the way, just as we exert the right of self-defence in innumerable other cases in which going to law would be equally absurd. And we may in like manner forcibly remove an intruder from a house or a railway car without stopping to call in a magistrate, or tear from a wall an insulting libel, or push back from a highway an overhanging bough. If so, we may defend life and limb, though the attack is one we may have so far anticipated as to have been able to call in official aid in advance.7 6 1 See infra, 1426. R. v. Cross, 3 entry. Damages were, however, given Camp. 226; R. v. Jones, Ib. 230; Peo- for the injury to the furniture. See ple v. Cunningham, 1 Den. 524, 1845; Newton v. Harland, 1 Scott N. R. 474. Wood on Nuisances, & 529. Infra, & 1100. 2 Manhattan Man. Co. v. Van Keuren, 23 N. J. Eq. 251, 1850; Turner v. Holtzman, 54 Md. 148, 1880. 3 See Brightman v. Bristol, 65 Me. 426, 1875; Earp v. Lee, 71 Ill. 193, 1874. 1823. De Bost v. Beresford, 2 Camp. 511. As illustrating the principle in the text may be mentioned a case in North Carolina decided in 1878, where it was *Infra, ¿? 621-22, 1100, 1105; Over- held that the owner of land has the deer v. Lewis, 1 W. & S. 90, 1841. In right to arrest and repress, as a nuiBeddall v. Maitland, 44 L. T. R. (N.S.) sance, a person using loud and obscene 248, C. D. (1881), the rightful owner language on the highway in front of of a house forcibly ejected a person such land; and when the person so wrongfully in possession, and injured offending is armed with a pistol, the his furniture. It was held that the limitation molliter manus does not violent entry of the rightful owner apply. State v. Davis, 80 N. C. 351, might be an offence under 5 Richard 1878; citing State v. Perry, 5 Jones, II. stat. 1, c. 8, but that no damages 9, 1853; State v. Robbins, 78 N. C. 431, could be obtained for the forcible 1878. Objects for which self defence may be exerted. § 98. Whoever possesses a right is entitled to defend that right. No matter what may be the character of the right, it cannot lawfully be taken from the owner by violence; and violence applied for this purpose he may violently resist. The Roman law is emphatic on this point, making the right to defend one of the incidents of the right to possess. "Vim vi repellere licet, idque ius natura comparatur.' "1 "Ut vim atque iniuriam propulsemus, iuris gentium est."" "Vim vi defendere omnes leges omniaque iura permittunt."3 Nothing, as has been well said, can be more general than these utterances. In our own law there have been tendencies to limit the right to the defence of home, of person, and of relatives in the first degree. No doubt there is a peculiar sanctity attached to these conditions which justifies even the taking of life in their defence. But this circumstance must not make us insensible to the fact that whenever a right has any value, then its possessor may protect it forcibly from assault." § 99. It has also been said that a party who can fly from an aggressor is bound to fly, and cannot set up self-defence. This, as we will hereafter see, is so far true that an assailed party cannot, unless driven to the wall, take his to self-deassailant's life. But as an elementary proposition it is not true that if I can evade an attack by flight then I must fly to evade the attack. If this were the law, few persons in times of trouble could remain at their posts. This, however, by confining the right of self-defence to attacks of which there could be no prior suspicion, would virtually abrogate the right. For it would be to say that the right of self-defence only exists when there is nothing to defend. And besides, the fundamental principle is that right is not required to yield to wrong.? 1 L. i. 27 D. de vi. 'L. 3. D. de iust. et iure. 3 L. 45. D. § 4, ut leg. Aq. 6 Flight not necessary fence. 214, 1841; State v. Elliot, 11 N. H. 540, 1840; State v. Miller, 12 Vt. 437, 1840; Com. v. Kennard, 8 Pick. 133, 1829; Berner, & 87. Com. v. Clark, 2 Metc. (Mass.) 23, 1841; Infra, 480, 495-508; and see Com. v. Powers, 7 Metc. (Mass.) 596, particularly 501. * Infra, & 486. 1843; Com. v. Dougherty, 107 Mass. 243, 1871; Com. v. Mann, 116 Mass. This is a settled rule of Roman 58, 1874; Filkins v. People, 69 N. Y. law. See Clarus Rec. Sent. Levita, 101, 1867; Parsons v. Brown, 15 Barb. p. 237; and see cases cited infra, ?? 590, 1857; State v. Gibson, 10 Ired. 486-501. That an assault in defence 214, 1849; State v. Covington, 70 N. of personal right is justifiable, see C 71, 1874. See, however, Hendrix infra, 23 501, 621. R. v. Mitton, 3 C. v. State, 50 Ala. 148, 1873. The law & P. 31, 1827; R. v. Driscoll, C. & M. is thus stated by Sir J. F. Stephen § 100. We must remand to future sections the discussion of the Defence of question, what degree of violence may be used in defence of home. It is only necessary here to repeat what property justifiable. has just been said, that the right to property of all kinds may be forcibly defended when it is forcibly attacked, and that the degree of force to be used in the defence is to be measured not by the value of the article, but by the degree of force used in the attack. Were it otherwise, the property of the poor would be discriminated against, and the right to defend property limited only to those rich enough to possess property of value. Nor is it possible to gauge our attachment to any piece of property by its mere money standard. An article of no money value may conduce greatly to my comfort and happiness; and beside this, I have a right to repel spoliation even of things of little value, on the ground that yielding to spoliation in little things is a yielding to spoliation in all things. The right extends also to mere possession, so that the bare possessor of a thing has a right forcibly to repel a forcible attempt to take it from him. Thus, a party having a right to the use of a well, though such right be not exclusive, may repel by force an intruder attempting to draw from it.3 But not violent defence of honor. § 101. An interesting question, which will be hereafter more fully discussed, arises as to the extension of the right of self-defence to injuries to honor. The cases which have heretofore been adjudicated in this relation have been mainly those in which persons whose character has been assailed have assaulted or killed the assailant. On these facts it has been uniformly held, as an elementary principle, that no words, no matter how insulting, will excuse an assault. At the same time insults of all kinds, words as well as blows, are to be taken into consideration in determining how far hot blood can be considered to exist. It is easy, also, to conceive of cases in which a party insulted is entitled to remove the instrument of insult; and we may adopt as sound law a ruling already noticed, that a person (Steph. Dig. Cr. L. art. 200): "Any person unlawfully assaulted may defend himself on the spot by any force short of the intentional infliction of death or grievous bodily harm; and if the assault upon him is, notwithstanding, continued, he is in the position of a person assaulted in the em 4 ployment of lawful force against the Roach v. People, 77 Ill. 25, 1875. 5 Infra, ¿¿ 455 et seq. insulted by a libel has a right to remove it from a wall on which it is posted.' immediate fence not § 102. A future danger, as we will hereafter see, cannot be anticipated by an attack upon the expected aggressor, Danger unless this be the only means of warding off the attack.2 must be Nor is the party attacked excusable in using greater and deforce than is necessary to repel the attack,3 remember- to exceed ing that the danger of the attack is to be tested, as will attack. be hereafter noticed, from the standpoint of the party attacked, not from that of the jury or of an ideal person. Whoever, by his misconduct, puts another in a condition in which the mind cannot act with reasonableness, cannot complain that such reasonableness is wanting. If the injured party acts negligently or unfairly in coming to the conclusion that he is in danger of life, then he is liable for the consequences if he exceed the limit of self-defence; but if his conclusion be honest and non-negligent, then the party assailing him must bear the consequences of the mistake. This view has been maintained by the German courts; and will be vindicated fully hereafter. The same limitation, prohibiting an excess of force, applies to the private abatement of nuisances." 1 Du Bost v. Beresford, 2 Camp. 511; freedom, honor, chastity, property of cited supra, 97 a. 'See infra, ?? 484, 498, 624. 'Com. v. Dougherty, 107 Mass. 243, 1871; State v. Ross, 26 N. J. L. 224, 1873; State v. Lazarus, 1 Const. C.R. 34, 1817; Gallagher v. State, 3 Minn. 270, 1859; Patten v. People, 18 Mich. 314, 1868; State v. Burke, 82 N. C. 551, 1880; Oliver v. State, 17 Ala. 587, 1849; Cotton v. State, 31 Miss. 504, 1860. Infra, 22 498, 624. all kinds, family relationships-she must leave the limits of self-defence to be determined, not by the tribunal by whom the case is ultimately to be coolly tried, but by the individual assaulted himself, according to his capacity as exercised in the excitement, the confusion, and the surprise of the attack. It is particularly to be kept in mind that in self-defence the conflict is not simply between power against power, but between superior and prepared against inferior and unprepared power; that the assailant is rarely able to convince the assailed that the attack has an object less destructive than at the first glance it apIf the State would not expose to peared to be; that the assailant knew spoliation the rights she undertakes this when he made the venture; that to protect- rights such as life, limb, he in this way knowingly exposed his 4 Archiv, 1848, p. 592. * See infra, ¿? 488–491. In the same connection we may notice the following striking remarks from a leading German commenta tor: Infra, 1426. See State v. Paul, 5 R. I. 185, 1858; State v. Parrot, 71 N. C. 311, 1874. |