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Vol. II.]

ALDRICH v. Wright.

[No. 2.

any precedent, nor restricted by any arbitrary dogma. Long upheld by the common law, it has, under the administration of that law, theoretically been what it was before; and now, reinforced by a constitutional guaranty, it is what it has always been. The authorities of the common law show what it has been held to be by men whose opinions are entitled to great consideration. If any discrepancy should be found in the definitions of it given by common law precedent and by natural reason, the latter must prevail, because the right is explicitly asserted in the Bill of Rights as a natural right, and not as one defined by common law authorities. But, between the natural right and its common law definition rightly understood, there is no variance that concerns the present inquiry. In the general terms of its common law definition, the right of defence is the right to do whatever apparently is reasonably necessary to be done in defence. And the verdict in this case, taken by consent upon the doctrine asserted by the plaintiff, subject to exception, must be set aside, because that doctrine conflicts, in three particulars, with the right of defence.1

I. The first error is limiting the right of defence by the bounds of real instead of apparent danger.

If A aims a pistol at B with threats which induce B to reasonably apprehend that the pistol is loaded, and that A intends to shoot him, B may disarm A at once, although it turns out that the pistol is not loaded, and that A intends only a harmless jest. A is estopped to deny that the fact is what his conduct induces B reasonably to believe and reasonably to act upon. B is not obliged to wait for the question of actual danger to be solved by an experiment which seems likely to destroy his right of defence. And if, in the use of reasonably necessary means to avoid the apparent danger, he kills A, one ground on which his innocence may rest is, the reason of the doctrine of estoppel. By putting him in apparent peril, A invites him to defend himself; and A cannot put him in actual peril of capital punishment by inducing him to accept the invitation.

In this case the question is, not of the real danger merely, but also of the danger, on reasonable grounds, really believed by the defendant to exist. He might have entertained, and had good cause to entertain, erroneous ideas of the character of the minks. Their pursuit of the geese, some of whom were young, was a seeming threat, and an overt act calculated to excite a suspicion of hostile designs, and ability to execute them. The evidence against them tended to show what, in a human creature, would be the ordinary symptoms of a felonious spirit, regardless of social duty and fatally bent on mischief. And if they never did and never could kill a goose of any age, their reputation might be bad; and their reputed character was one of the circumstances of apparent danger or apparent safety. A person attacked has no right to kill his assailant for the purpose of punishing a bad or desperate man, or of ridding the world of a ruffian; 4 Bl. Com. 178, 184; but the character of the assailant for ferocity or peaceableness, known to the party attacked, is circumstantial evidence of apparent peril or apparent security, upon which he may be authorized to act. An attack upon a dangerous man may be unjustifiable; but the dangerous character of an assailant is a legitimate reason for

1 Many American cases on these points are Self-Defence, published since this opinion was collected in Horrigan & Thompson Cases on delivered.-REPORTER.

Vol. II.]

ALDRICH v. WRIGHT.

[No. 2. apprehending danger, and employing speedy, energetic, and sure means of defence. Harrison v. Harrison, 43 Vt. 417; Wharton Cr. L. secs. 641, 1026, 1027. The numerous authorities,1 in other jurisdictions, holding a different doctrine, are not consistent with the natural right of defence declared in our Bill of Rights.

The reputation of the minks, their pursuit of the geese, and the alarm and retreat of the latter, may have shown apparent danger, when the real character of the pursuers may have created no actual danger. Mr. Blood, a near neighbor of the defendant, did not know whether minks are accustomed to kill geese or not. The defendant may have been equally uninstructed. And it was not his duty to postpone the defence of his property until, neglecting his usual occupations and incurring expense, he could examine zoological authorities, consult experts, or take the opinion of the county on the question whether his "half-grown" geese were actually endangered, in life or limb, by the incursion of "one old mink and three young ones," "all about the same size." The conclusion of the investigation might be too late. And if the question were found to be a debatable and doubtful one, it would not be his duty to settle it by a trial at his own risk. The plaintiff's doctrine destroys the right of defence which exists in a case of merely apparent danger.

II. The plaintiff's claim that the defendant is liable if the geese were not in imminent danger, taken in the sense for which the plaintiff contends, and the sense in which both parties, at the trial, probably understood it, cannot be sustained.

The term "imminent " does not describe the proximity of the danger by any rule of mechanical measurement; and in its broad and popular signification, admitting a large degree of latitude and adaptation to circumstances, it may be properly used in this case. But it has been so much used in cases of defence against a human aggressor, and, in that class of cases, has, for peculiar reasons, acquired a legal meaning so · special, restricted, and technical, that, if used in a case like the present, it should be accompanied by some explanation of the general comparative and relative sense in which it is used.

The reverse case states that Mr. Blood, in common with the defendant, owned the pond. Taking that to be the condition of the title, the defendant's rights, so far as they are involved in this case, were the same as if he alone had owned the pond including the island. But supposing, what the case undoubtedly means, that the boundary line between the lands of Mr. Blood and the defendant ran through the pond, as well as through the middle of the brook that flowed into the pond, the minks and geese may have been on premises of which the defendant was sole and absolute proprietor. But it is immaterial how that is, because the defendant was evidently in the actual and legal use and occupation of his own part of the pond in his own right, and of the rest of it by the license of Mr. Blood. It is not claimed that the defendant, as a trespasser, killed the minks on Mr. Blood's land without his consent. This is not trespass qu. cl. brought by Mr. Blood against the defendant. For the legal purposes of this case, as between the defendant and the minks, the pond and island

1 Horrigan & Thompson Cases on Self-Defence 238, 696. REPORTER.

Vol. II.]

ALDRICH V. Wright.

[No. 2.

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

Vol. II.]

ALDRICH V. WRIGHT.

[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 N. 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 fact1 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.

Vol. II.]

ALDRICH v. WRIGHT.

[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

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