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personal security, but the circumstances, surrounding the persons, require the death of one of them. He says: There is one species of homicide se defendendo where the party slain is equally innocent as he who occasions his death: and yet this homicide is also excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferable to that of another, where one of them must inevitably perish. As, among others, in that case mentioned by Lord Bacon,' where two persons being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man's is excusable through unavoidable necessity, and the principle of self-defense ; since both remaining on the same weak plank is a mutual, though innocent, attempt upon, and an endangering of each other's life.” ? But, of late, the doctrine has
2 been repudiated by the English Courts in a case, which has created widespread interest. A shipwreck had occurred, and some four or five persons occupied one of the life-boats. They were without provisions, and after enduring the pangs of hunger until they were almost bereft of reason, one person, a young boy, was selected by the others to die for their benefit. The boy was killed, and the others subsisted on his flesh and blood, until they were overtaken by a vessel, and carried to England. Their terrible experience was published in the papers, and the ship having been an English vessel, they were arrested on the charge of murder, and convicted, notwithstanding the strong effort of counsel to secure from the court a recognition of the principle advocated by Blackstone. A contrary doctrine is laid down by the Court, that no one has a right to take the life of another to save his own, except when it is endangered by the attacks of the other person. Even in cases of the extremest necessity the higher law must be obeyed, that man shall not save his life at the expense of another, who is not responsible for the threatening danger.
1 Elem. c. 5. 3 4 BI, 186.
Homicide is not only justifiable when committed in defense of one's life, but it is likewise excusable, when it is necessary to the protection of a woman's chastity. She may employ whatever force is necessary to afford her protection against the assault, even to the taking of life. So may one use any degree of force that may be necessary to protect any member of his family, a wife, child, etc.? So may a battery be justified which is committed in defense of one's property, both real and personal, providing, always, that the force used is not excessive. And where one is assaulted in one's dwelling, he is not required to retreat, but he may take the trespasser's life, if such extreme force is necessary to prevent an entrance. But, although one may resist to any extent the forcible taking away of any property from himself, yet homicide in resisting a simple trespass to property, where there is no violence offered to the person, is never justifiable, except in the case of one's dwelling.'
In all these cases, the assault and battery are justified,
i Staten v. State, 30 Miss. 619; Briggs v. State, 29 Ga. 733.
? Commonwealth v. Malone, 114 Mass. 295; Stoneman o. Commonwealth, 25 Gratt. 887; State v. Johnson, 75 N. C. 174; Staten v. State, 30 Miss. 619; Patten v. People, 18 Mich. 314.
8 Green v. Goddard, 2 Salk. 641; Beecher v. Parmele, 9 Vt. 352; Harrison v. Harrison, 43 Vt. 417; Ayers v. Birtch, 35 Mich. 501; Woodman v. Howell, 45 III. 367; Abt v. Burgheim, 80 III, 92; Staehlin v. Destrehan, 2 La. Ann. 1019; McCarty v. Fremont, 23 Cal. 196.
4 State v. Burwell, 63 N. C. 661; McPherson v. State, 22 Ga. 478; State 0. Abbott, 8 W. Va. 741; Pitford v. Armstrong, Wright (Ohio), 94; Wall v. State, 51 Ind. 453; Pond v. People, 8 Mich. 150; State v. Stockton, 61 Mo. 382; Palmore v. State, 29 Ark. 248.
5 State v. Vance, 17 Iowa 138. See Loomis v. Terry, 17 Wend. 496. See, also, Bird v. Holbrook, 4 Bing. 628; Aldrich v. Wright, 53 N. H. 398 (16 Am. Rep. 339); Hooker v. Miller, 37 Iowa, 613 (18 Am. Rep. 18), where it is held that the use of spring guns and other like instruments, which cause the death of trespassers upon the land, is not permissible.
only where they are employed in protecting rights against threatened injury. One cannot use force in recovering property or rights which have been taken or denied, or in punishing those who have violated his rights. It is no part of one's legal rights to avenge the wrongs of himself and of his family.”
At common law it was the right of one, who was unlawfully disseised, to recover his lands by force of arms, using whatever force was necessary to that end. But in the reign of Richard II., a statute was passed which prohibited entries upon land, in support of one's title, " with strong hand or a multitude of people, but only in a peaceable and easy manner.” 3 Similar statutes have
. been passed in most of the States of this country, and the effect of the statute has been the subject of more or less extensive litigation. The question has been mooted from an early period, whether the purpose of the statute was to take away the common-law civil right to recover one's lawful possession by force of arms, or simply to provide a punishment for the breach of the public peace thereby occasioned. Although there are decisions, which maintain that the statute has this double effect, and that such a forcible entry would lay the lawful owner open to civil actions for trespass and for assault and battery,' yet the weight of authority, both in this country and England, is certainly in favor of confining the operation of the statute to a criminal prosecution for the prohibited entry. The decisions cited below maintain that the plea of liberum tenementum is a good plea to every action of trespass quart clausum fregit, and even if the tenant is forcibly expelled and suffers personal injuries therefrom, no civil action for any purpose will lie, unless the force used was greater than what was necessary to effect his expulsion.
336; Churchill o.
* Commonwealth 0. Haley, 4 Allen, 318; Sampson v. Henry, 13 Pick.
Hulbert, 110 Mass. 42 (14 Am. Rep. 578). * Cockroft o. Smith, 11 Mod. 43; Barfoot v. Reynolds, 2 Stra. 953; State v. Gibson, 10 Ired. 214.
* Tiedeman on Real Property, § 228.
* Reeder 0. Pardy, 41 III. 261; Doty v. Burdick, 83 III. 473; Knight v. Knight, 90 III. 208; Dustin o. Cowdry, 23 Vt. 631; Whittaker v. Perry, 38 Vt. 107 (but see contra Beecher v. Parmelee, 9 Vt. 352; Mussey v. Scott, 32 Vt. 82). See Moore v. Boyd, 24 Me. 247.
§ 14. Abortion. — In the act of abortion, there is a twofold violation of rights. In the first place, it involves a violation of personal security to the limbs and body of the woman. The fætus is part of the body of the woman and an unnatural expulsion of it inflicts injury upon the mother. But since the maxim of the law is, volenti non fit injuria, there is at common law no crime of assault and battery against the woman, where she procures or assents to the abortion. But abortion involves also the destruction of the life-germ of the foetus, which is considered, even by the common law, to be a living human being for certain purposes. Mr. Blackstone says: Even an infant in ventre sa mère, or in the mother's womb, is, for many purposes, which will be specified in the course of these commentaries, treated in law as if actually born."'? But the fætus was not supposed to have such an actual separate existence as to make abortion a crime against the unborn child, until it had reached that stage of its growth when it is said to “quicken.” Consequently at common law, where an abortion is commit
Harvey o. Brydges, 13 M. & W. 437; Davis v. Burrell, 10 C. B. 821 ; Hilbourne o. Fogg, 99 Mass. 11; Churchill 0. Hulbert, 110 Mass. 42 (15 Am. Rep. 578); Clark v. Kelliher, 107 Mass. 406; Stearns v. Sampson, 59 Me. 569 (8 Am. Rep. 412); Sterling v. Warden, 51 N. H. 239 (12 Am. Rep. 80); Livingston v. Tanner, 14 N. H. 64; Estes v. Redsey, 8 Wend. 560; Kellum v. Jansorn, 17 Pa. St. 467; Zell v. Reame, 31 Pa. St. 304; Todd v. Jackson, 26 N. J. L. 525; Walton v. Fill, 1 Dev. & B. 507; Johnson v. Hanahan, 1 Strobh. 313; Tribble v. Frame, 1 J.J. Marsh. 599; Krevet v. Meyer, 24 Mo. 107; Fuhr v. Dean, 26 Mo. 116. But where force is used after a peaceable entry to eject a tenant, it is lawful and will not sustain a prosecution for assault and battery. Stearns v. Sampson, 59 Me. 569 (8. Am Rep. 442). 21 Bl. Com. 154.
ted upon a woman, with her consent, before the child had quickened, it is no crime unless the death of the mother ensues. The crime of abortion is now regulated by statute in the different States, and is generally made a crime, under all circumstances, to procure the miscarriage of a pregnant woman, whether she consents to the act, or the child has not quickened, and even where she herself, unaided, attempts the abortion.
$ 15. Compulsory submission to surgical and medical treatment. —- Although it has never been brought before the courts for adjudication, it is nevertheless a most interesting question of police power, whether a person who is suffering from disease can be forced to submit to a surgical operation or medical treatment. We can readily understand the right of a parent or guardian to compel a child to submit to necessary medical treatment, and likewise the right of the guardian or keeper of an insane person to treat him in a similar manner. So also can we justify the exer
а cise of force in administering remedies to one who is in the delirium of fever. But can a sane, rational man or woman of mature age be forced to submit to medical treatment, though death is likely to follow from the consequent neglect? If the disease is infectious or contagious, we recognize without question the right of the State to remove the afflicted person to a place of confinement, where he will not be likely to communicate the disease to others ;? and we recognize the right of the State to keep him confined, as long as the danger to the public continues. Inasmuch as the confinement of such a person imposes a burden upon the community, all means for lessening that burden may be
* Commonwealth v. Parker, 9 Metc. 263; State o. Cooper, 22 N. J. L. 52; see Abrams 0. Foshee, 3 Iowa, 274; Hatfield v. Gano, 15 Iowa, 177; People o. Jackson, 3 Hill, 92; Wilson o. Iowa, 2 Ohio St. 319; Robbins ¥. State, 8 Ohio St. 131; State v. Smith, 32 Me. 369; Commonwealth v. Wood, 11 Gray, 85; Mills v. Commonwealth, 13 Pa. St. 631.
? See post, $ 42.