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Vol. II.)

ALDRICH v. Wright.

[No. 2.

Defensiveence of using it arent danger, viewen force, purely dary for dethe consertioned to the with each otl

were the pond and island of the defendant; his geese were rightfully there, and the minks were there without right. And there was something to be done ; for there was no duty of living with or yielding to intruders who manifested a propensity to eat their co-tenants.

Defensive force, in its kind, degree, and promptness, is measured by the consequence of using it and the consequence of not using it: it should be proportioned to the apparent danger, viewed in the light of those consequences contrasted with each other. When force, purely defensive at first, increases and becomes more than is reasonably necessary for defence, the excess is aggressive and not defensive. When resistance starts beyond the reasonable necessity of the case, it may be divisible into two parts : so far as it is reasonably necessary, it is resistance; so far as it is not reasonably necessary, it is aggression. But this is to be understood in the liberal sense of the law. When it is reasonably necessary for A to shoot B, who is about to shoot him, A's shot is, in form, aggressive ; but in substance and contemplation of law, it is defensive. In the present case, the defendant's act was defensive, if apparently it was reasonably necessary in quality, quantity, and time for the protection of his geese ; and it was not defensive, if apparently and really it was not reasonably necessary.

To justify the defensive destruction of human life, the danger must be, not problematical and remote, but evident and immediate. If a man, after pursuing the defendant as the minks pursued his geese, had retreated to the island, with no means of doing harm while he remained there, and there had been no reasonable ground to believe he would make an immediate attack, the time would not have been a reasonably necessary one for shooting him. The defendant would not have been in imminent danger, in the technical sense of the authorities, which hold that a man's life is never in imminent danger of a human assault so long as he can safely run away. But imminent danger is relative, and not absolute, and is measured more by the nature of consequences than by the lapse of time. It is not a condition of things in which the party, whose person or property is imperilled, is allowed to anticipate and prevent the impending mischief by making a deadly defence only a precise and invariable number of seconds, minutes, hours, or days before the mischief would happen without such defence. The law does not fix the distance of time between the justifiable defence and the mischief, for all cases, by the clock or the calendar. The chronological part of the doctrine of defence, like the rest of it, is a matter of reasonableness ; and reasonableness depends upon circumstances.

In defence, it may be reasonable that a man should strike quicker for human life than for property ; that he should strike quicker at an habitual fighter, professional robber, or notorious assassin, from whom there would be reason to expect sudden or extreme violence, than at a man previously inoffensive, from whom there would be little reason to apprehend a serious attack ; that he should strike quicker at a strong man than at a weak one; that he should shoot a dog quicker than he should shoot a man; and that he should shoot mischievous wild animals, which are the absolute property of nobody, quicker than he should shoot a valuable domestic animal, the property of his neighbor. The consequences of

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Vol. II.)


[No. 2.

shooting, compared with the consequences of not shooting, are material to be considered on the question when he should shoot, as well as on the question whether shooting is a defence of a reasonably necessary kind.

Imminence of danger, in this broad and relative sense, creating a reasonable necessity, was the test of the defendant's right. But this test, by its frequent application to the defensive right of destroying human life, is so liable to be misunderstood, when applied to the defensive right of destroying mischievous wild animals, that some explanation of it is necessary in a trial of this case. It is probable that the parties understood that, by the doctrine of imminent danger, the defendant was liable unless the geese would, in a few moments, have been killed by the minks but for the defendant's shot. The doctrine, asserted in that form, would be erroneous. It was for the jury to say, considering the defendant's valuable property in the geese, the absence of absolute property in the minks, their character, whether harmless or dangerous, the probability of their renewing their pursuit if he had gone about his usual business and left the geese to their fate, the sufficiency and practicability of other kinds of defence, — considering all the material elements of the question, it was for the jury to say whether the danger was so imminent as to make the defendant's shot reasonably necessary in point of time. If but for the shot, some of the geese, continuing to resort as usual to the pond, apparently would have been killed by these minks within a period quite indefinite, and if other precautionary measures of a reasonable kind, as measured by consequences, would have been ineffectual, the danger was imminent enough to justify the destruction of the minks for the protection of property.

The right of defence is the right to do whatever apparently is reasonably necessary to be done in defence under the circumstances of the case. The English practice of the judge advising the jury on the facts and weight of the evidence - State v. Pike, 49 Ñ. H. 416, 417, 436; State v. Hodge, 50 N. H. 520; Greenwood's case, cited in White v. Wilson, 13 Ves. 89; 1 Hale P. C. 570; Bradford 'v. S. C. R. Co. 7 Rich, 201; Matthews v. Beach, 5 Sandf. 256, 266 — and drawing, from circumstances stated in special verdicts, conclusions which have often been matters of fact – 1 Hale P. C. 478; Cook's case, Cro. Car. 537 ; East P. C. ch. 5, sec. 47; 1 Bishop Cr. L. sec. 847, 5th ed. — and the general tendency of English courts to encroach upon the province of the jury, have carried into the reports many opinions of what is and what is not reasonably necessary, which are opinions of fact and not of law; and authors of legal treatises have naturally followed the judicial precedent, and expressed opinions of a like character. Nearly if not quite all the doubt, obscurity, and conflict supposed to exist in the common law of defence, exist not in the law, but in these opinions of fact mistaken for opinions of law. When it is held that evidence tending to show a certain kind, degree, and imminence of danger did or did not justify a certain kind, degree, and celerity of violence in warding off the danger, the decision is a comparison of the probable consequences of using the violence, with the probable consequences of not using it; and an inference of fact drawn from the comparison, that the violence was or was not commensurate with the danger, and, consequently, that the violence was or was not reasonably necessary.

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(No. 2. On the subject of defending a man's property, in his absence, by spring-guns, man-traps, or other engines calculated to destroy human life or inflict grievous bodily harm, the English courts turned a question of fact into a question of law, and were not successful in their efforts to prescribe adequate rules for determining the reasonable necessity of such engines under the varying circumstances of different cases. Deane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Ald. 304; Bird v. Holbrook, 4 Bing. 628; Jordin v. Crump, 8 M. & W. 782; Wootton v. Dawkins, 2 Com. B. (N. S.) 412; Loomis v. Terry, 17 Wend. 496 ; Johnson v. Patterson, 14 Conn. 1; State v. Moore, 31 Conn. 479; Gray v. Combs, 7 J. J. Marsh. 478, 483; Sidney Smith on Spring-guns (Phila. ed. of his Essays, 1848), pp. 150, 227; 10 Campbell's Lives of the Chancellors, 63. This error of the courts was partially corrected by acts of parliament 7 & 8 Geo. 4, c. 18, secs. 1, 2, 3, 4; 24 & 25 Vict. c. 100, sec. 31 — making it a misdemeanor to set such engines except in a dwelling-house, for the protection thereof in the night, and excepting such gin or trap as may have been or may be usually set with the intent of destroying vermin. If the courts had refrained from the invasion of the province of the jury, it would not have been necessary for the legislature to make this imperfect restoration of the common law, or to provide penalties for its violation. If the reasonable necessity of employing defensive machinery of all kinds had been left to the jury, as such a question of fact should have been, much judicial and legislative trouble would have been avoided, and the general principles of the common law would have been sufficient. The evil effects of holding fact to be law, practically demonstrated in this branch of the doctrine of defence, should operate as a warning against similar mistakes.

It is reasonable that the kind and amount of defensive force should be measurably proportioned to the kind and amount of danger, to the apparent consequences of using the force, and the apparent consequences of not using it. The probable consequences on both sides are to be considered and compared. There is a great difference between an attack made upon A by B, and an attack made upon him by B’s dog. On A's side, the consequences of his being killed by B, and the consequences of his being killed by B's dog, may not be materially different. But on the other side, the consequences of his defending himself by killing B, and the consequences of his defending himself by killing B’s dog, regarded from a human point of view, which is the one adopted by human law, are very different. The difference in the common law values of the lives destroyed exhibits the reasonableness of adjusting the quality, quantity, and time of defensive force with some reference to consequences. A, when attacked by B, may kill him if it is reasonably necessary to do so ; when attacked by B's dog, he may kill the dog if it is reasonably necessary to do so. But a kind, degree, and imminence of danger caused by the attack of the dog might make it reasonably necessary to kill him ; although the same kind, degree, and imminence of danger caused by B's attack might not make it reasonably necessary to kill him. If A were not in danger of being killed or grievously injured by B's attack, it might be unreasonable to destroy B’s life, when it would be both reasonable and highly meritorious to destroy the dog's life, though his attack caused no more Vol. II.)

ALDRICH v. Wright.

(No. 2.

danger than the attack of B. An assault and battery committed by the dog might justify his destruction - Credit v. Brown, 10 Johns. 365 — although a similar assault and battery committed by a man might not justify homicide, “the law distinguishing, to many and most essential purposes, between property and the life of man.” Dallas, J., in Deane v. Clayton, 7 Taunt. 518. The right to kill a man in self-defence is not the test of the right to kill a dog in self-defence. Reasonable necessity is the test in both cases : but what is reasonably necessary against a canine assailant may not be reasonably necessary against a human one, although the same danger be caused by each. The dominion of man over brutes is a part of the natural order recognized by the common law; and, judging by the human standards of the common law, and taking them as the perfection of human reason, it is reasonable that a man should discriminate between the consequences of killing a man and the consequences of killing a dog, because the common law estimates human life and human limbs as vastly more valuable than all things commonly regarded as property, and estimates canine life as comparatively worthless, dogs and cats being classed with domesticated vermin. 1 Bl. Com. 130; 4 Ib. 182, **235; 2 Ib. 393 ; 1 Hale P. C. 512; 1 Hawk. P. C. ch. 33, sec. 23; Findlay v. Bear, 8 S. & R. 571; Woolf v. Chalker, 31 Conn. 121.

There is also a great difference between an attack made upon A by B, and an attack made upon A's dog by B. A, being attacked by B with a deadly weapon, may instantly kill him, if it is necessary to do so to save his own life ; but A's dog being attacked by B in the same manner, the authorities would not justify A in instantly killing B, even if the dog's life could not otherwise be saved.

These illustrations present the defensive destruction of life, founded as it is, by law and by natural reason, upon the consequences of destruction compared with the consequences of non-destruction. It is evident that, in many cases of equally imminent danger, the right of destruction depends upon the question whether the assailant is a man or a brute, and upon the question whether the party assailed is a man or a brute. An undiscriminating rule of imminent danger abolishes these distinctions, and tries the defendant by the tests of murder. Why, then, was he not indicted and tried for murder, instead of being harassed by this petty suit ?

Brill v. Flagler, 23 Wend. 354,, was trespass for killing a dog. The defendant pleaded that the dog was accustomed to come upon the close of the defendant in the night-time as well as in the daytime, and by his barking and howling annoy and disturb the defendant and his family ; and the plaintiff did not restrain the dog from coming upon the defendant's premises, though requested so to do; and because the dog was upon the defendant's premises and about his dwelling-house at the time, &c., annoying, incommoding, and disturbing him and his family, and because the dog could not otherwise be restrained, the defendant killed him. This was held a good plea, on the ground that the noise of the dog was an intolerable nuisance, justifying the violent defence; that it would be a mockery to refer the defendant to the remedy of an action against the plaintiff, which would be far too dilatory and impotent for the exigency of the case; that the peace and repose of a man's family are to be regarded in Vol. II.)

ALDRICH v. Wright.

[No. 2.

the law as at least equal in value to the life of a dog ; and that the death of the plaintiff's dog was essential to the free and perfect enjoyment by the defendant of his property, as well as to the protection and comfort of his family. But if the barking and howling had been continued by the plaintiff himself after the death of his dog, the difference between the legal values of human and canine life would have been a material circumstance to be considered, on the question of the reasonableness of the defendant killing the plaintiff as a method of abating the continued nuisance. Loomis v. Terry, 17 Wend. 499. There was just cause for killing the dog ; but killing his owner for a like cause, according to the authorities, would be murder.

The immense value at which the law appraises human life makes it legally reasonable that the destruction of it, as a means of averting danger, should be resorted to only when the danger is immense in respect of consequences, and exceedingly imminent in point of time. But the extent of danger and the degree of imminence requisite to justify a deadly defence against a human aggressor were not requisite to justify the act of the defendant in this case.

On the question of the reasonable necessity of his act, the insufficiency and impracticability of other more tardy and less vigorous kinds of defence are to be considered.

A violent ejection of a human trespasser from one's premises may be unnecessary, if the trespasser will depart when ordered off. It may be reasonable to notify him to leave before using violence to expel him, when a notice will evidently be as effectual as force. If an order is enough to accomplish the object, violence may be excessive; when a word is a sufficient defence, a blow may be an attack and not a defence. But this defendant was not bound to give these intruders notice to depart, because it would probably have been worse than useless. If, by noisy and harmless demonstrations, he had endeavored to make known his desire that they should retire from his premises and trouble him no more, they might weil have taken the notice as a sign of present danger, and a warning to instantly secrete themselves. How large the pond and island were, and what was the character of that part of the country, the case does not inform us; but there probably was an abundance of secure retreats for such animals within gunshot. At all events, frightening them away might not be a reasonable task to impose upon the defendant. Their ability to quickly conceal themselves in that vicinity might be materially increased by their amphibious character. And it was not reasonably necessary for him to throw away his only opportunity of a feasible defence, by causing them to betake themselves to some near hiding-place, where they could safely await his departure.

Taylor v. Newman, 4 B. & S. 89, was an action brought to recover a penalty imposed by statute for unlawfully killing a domestic pigeon. A farmer, annoyed by a flock of pigeons which were in the habit of feeding upon his land, notified their owner that he should be compelled in selfdefence to shoot them if they were not prevented from doing further injury to his crops. Finding them afterwards feeding in his field, he fired at them, and thereby caused them to rise, and then fired again and killed one of them. It was argued for the plaintiff, that the killing of the pig

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