SELF-DEFENCE, crim. law. The right to protect one's person and property from
injury.
2. It will be proper to consider, 1. The extent of the right of self-
defence. 2. By whom it may be exercised. 3. Against whom. 4. For what
causes.
3.-1. As to the extent of the right, it may be laid down, first, that
when threatened violence exists, it is the duty of the person threatened to
use all, prudent and precautionary measures to prevent the attack; for
example, if by closing a door which was usually left open, one could prevent
an attack, it would be prudent, and perhaps the law might require, that it
should be closed, in order to preserve the peace, and the aggressor might in
such case be held to bail for his good behaviour; secondly, if, after having
taken such proper precautions, a party should be assailed, he may
undoubtedly repel force by force, but in most instances cannot, under the
pretext that he has been attacked, use force enough to kill the assailant or
hurt him after he has secured himself from danger; as, if a person unarmed
enters a house to commit a larceny, while there he does not threaten any
one, nor does any act which manifests an intention to hurt any one, and
there are a number of persons present, who may easily secure him, no one
will be justifiable to do him any injury, much less to kill him; he ought to
be secured and delivered to the public authorities. But when an attack is
made by a thief under such circumstances, and it is impossible to ascertain
to what extent he may push it, the law does not requite the party assailed
to weigh with great nicety the probable extent of the attack, and he may use
the most violent means against his assailant, even to the taking of his
life. For homicide may be excused, se defendendo, where a man has no other
probable means of preserving his life from one who attacks him, while in the
commission of a felony, or even on a sudden quarrel, he beats him, so that
he is reduced to this inevitable necessity. Hawk. bk. 2, c. 11, s. 13. And
the reason is that when so reduced, he cannot call to his aid the power of
society or of the commonwealth, and, being unprotected by law, he reassumes
his natural rights, which the law sanctions, of killing his adversary to
protect himself. Toull. Dr. Civ. Fr. liv. 1, tit. 1, n. 210. See Pamph. Rep.
of Selfridge's Trial in 1806 2 Swift's Ev. 283.
4.-2. The party attacked may undoubtedly defend himself, and the law
further sanctions the mutual and reciprocal defence of such as stand in the
near relations of husband and wife, patent and child, and master and
servant. In these cases, if the party himself, or any of these his
relations, be forcibly attacked in their person or property, it is lawful
for him to repel force by force, for the law in these cases respects the
passions of the human mind, and makes, it lawful in him, when external
violence is offered to himself, or to those to whom he bears so near a
connexion, to do that immediate justice to which he is prompted by nature,
and which no prudential motives are strong enough to restrain. 2 Roll. Ab.
546; 1 Chit. Pr. 592.
5.-3. The party making the attack may be resisted, and if several
persons join in such attack they may all be resisted, and one may be killed
although he may not himself have given the immediate cause for such killing,
if by his presence and his acts, he has aided the assailant. See Conspiracy.
6.-4. The cases for which a man may defend himself are of two kinds;
first, when a felony is attempted, and, secondly, when, no felony is
attempted or apprehended.
7.-1st. A man may defend himself, and even commit a homicide for the
prevention of any forcible and atrocious crime, which if completed would
amount to a felony; and of course under the like circumstances, mayhem,
wounding and battery would be excusable at common law. 1 East, P. C. 271; 4
Bl. Com. 180. A man may repel force by force in defence of his person,
property or habitation, against any one who manifests, intends, attempts, or
endeavors, by violence or surprise, to commit a forcible felony, such as
murder, rape, robbery, arson, burglary and the like. In these cases he is
not required to retreat, but he may resist, and even pursue his adversary,
until he has secured himself from all danger.
8.-2d. A man may defend himself when no felony has been threatened or
attempted; 1. When the assailant attempts to beat another and there is no
mutual combat; as, where one meets another and attempts to commit or does
commit an assault and battery on him, the person attacked may defend
himself; and an offer or, attempt to strike another, when sufficiently near,
so that that there is danger, the person assailed may strike first, and is
not required to wait until he has been struck. Bull. N. P. 18; 2 Roll. Ab.
547. 2. When there is a mutual combat upon a sudden quarrel. In these cases
both parties are the aggressors; and if in the fight one is killed it will
be manslaughter at least, unless the survivor can prove two things: 1st.
That before the mortal stroke was given be had refused any further combat,
and had retreated as far as he could with safety; and 2d. That he killed his
adversary from necessity, to avoid his own destruction.
9. A man may defend himself against animals, and he may during the
attack kill them, but not afterwards. 1 Car. & P. 106; 13 John. 312; 10
John. 365.
10. As a general rule no man is allowed to defend himself with force if
he can apply to the law for redress, and the law gives him a complete
remedy, See Assault; Battery; Necessity; Trespass.
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