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Vol. II.]

ALDRICH V. WRIGHT.

[No. 2.

reasonably necessary a deadly defence might be, no one, without a lawyer's technical knowledge, could make such a defence without running great risk of the gallows. But, suppose the defendant had been a profound lawyer; had known perfectly well that it might be reasonably necessary, by homicide, to prevent an apparent, violent felony, but not a trespass or misdemeanor; had thoroughly understood the general rule, and all the qualifications, exceptions, and nice distinctions to be found in the books on the subject; and had been able to reconcile or otherwise dispose of conflicting precedents and opinions, and accurately to remember and exactly apply all the authorities, at an instant's notice, in excitement and disturbance, his learning in that branch of the law would have availed him nothing in the adjustment of his defensive measures to the reasonable necessity of the case presented by these minks, but would, if relied upon, have greatly increased his embarrassment. The distinction between felony and trespass attempted by the aggressor, which has been supposed to be in general a test of the right to kill him, like all other tests devised in former times to illustrate the predominance of the sanctity of human life among the considerations of reasonable necessity, is inapplicable to the present case.

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One who finds game, that is, wild animals fit for food, on his own ground, cannot justify pursuing them into the land of another. Deane v. Clayton, 7 Taunt. 489. But in Mitten v. Faudrye, Popham, 161, Doddridge, J., said: "In the time of Chief Justice Popham, this case was adjudged in this court: trespass was brought for hunting, and breaking of hedges; and the case was, that a man started a fox in his own land, and his hounds pursued him into another man's lands, and it was holden that he may hunt and pursue him into any man's land, because a fox is a noysome creature to the commonwealth." And other authorities hold that a man may justify an entry and a reasonable trespass upon another's land for killing mischievous vermin, that is, wild animals not fit for food. Gundry v. Feltham, 1 D. & E. 334; Nicholas v. Badger, cited in 3 D. & E. 259, note a; Bac. Abr. title Game. Wild ducks being valuable, an action lies for frightening them from a decoy pond; and grouse being valuable, an action lies for frightening them away from a man's land Carrington v. Taylor, 11 East, 571; Keeble v. Hickeringill, 11 East, 574, note; 11 Mod. 74; 3 Salk. 9; Holt, 14, 17, 19; Ibbotsow v. Peat, 3 H. & C. 644. But rooks being worthless and destructive, it has been held that no action lies for frightening them away from a man's premises. Hannam v. Mockett, 2 B. & C. 934. In the latter case, Bayley, J., delivering the opinion of the court, said: "In considering a claim of this kind, the nature and properties of the birds are not immaterial. The law makes a distinction between animals fitted for food, and those which are not; between those which are destructive to private property, and those which are not; between those which have received protection by common law or by statute, and those which have not. It is not alleged in this declaration that these rooks were fit for food; and we know, in fact, that they are not generally so used." Whether all the English authorities on the subject are or are not in every particular sound, and adapted to the condition of this country, they at least tend to show that (with perhaps some exceptions not pertinent to the present inquiry) mischievous vermin, alive and free

Vol. II.]

ALDRICH V. WRIGHT.

[No. 2.

including all classes of noxious wild animals,
reptiles,
law.

beasts, birds, insects, and not fit for food, are worthless in the estimation of the common

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Larceny cannot be committed in some things, whereof the owner may have a lawful property, and such whereupon he may maintain an action of trespass, in respect of the baseness of their nature, as mastiffs, spaniels, greyhounds, bloodhounds; or of some things wild by nature, yet reclaimed by art or industry, as bears, foxes, ferrets, &c., or their whelps, or calves, because, though reclaimed, they serve not for food but pleasure, and so differ from pheasants, swans, &c., made tame, which, though wild by nature, serve for food." 1 Hale P. C. 511, 512; Rex v. Searing, Russ. & Ry. 350; Norton v. Ladd, 5 N. H. 203; Warren v. State, 1 Greene (Iowa), 106, 111. "Of all valuable domestic animals, as horses and other beasts of draught, and of all animals domitae naturae, which serve for food, as neat or other cattle, swine, poultry, and the like, . . . . larceny may be committed; and also of the flesh of such as are either domitae or ferae naturae, when killed. As to those animals which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to larceny." 4 Bl. Com. 236, *235; 2 Ib. 393. of any creatures whatsoever which are domitae

"The taking

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naturae, and fit for food, as ducks, hens, geese, may be felony; but subjects of larceny "ought not to be things of a base nature, as dogs, cats, bears, foxes, monkeys, ferrets, and the like, which, howsoever they may be valued by the owner, shall never be so highly regarded by the law, that for their sakes a man shall die." 1 Hawk. P. C. ch. 33, secs. 23, 28. For the sake of vermin, though tame and in some sense valuable, a man shall not die. Capital punishment for stealing a domesticated goose, but not for stealing a domesticated mink, such is the discrimi nating discipline of the common law. Human life of inestimable value; domesticated animals, valuable for food or for practical use, far less worthy than the human species; domesticated vermin less worthy still; mischievous wild vermin, a public nuisance, such is the common law appraisal. Under this system, the malicious destroyer of human life is liable to indictment and death, but not to a civil action, for ancient reasons difficult to be now discovered, possibly of theological origin; Exodus xxi. 12, 18, 19, 22, 23; Leviticus xxiv. 17, 18; Numbers xxxv. 31; possibly derived from the difference between human life, which no man owns, and other life which may be the subject of property; Wyatt v. Williams, 43 N. H. 102; the malicious destroyer of property in domesticated brutish life is liable to an action for the damage to property, but not to indictment; the felonious taker of another's domesticated animals, of the class recognized by the law as fit for food or otherwise useful or profitable, is liable to an indictment and an action; the taker of another's domesticated animals of the vermin class is liable to an action, but not to indictment; the taker on another's land of wild animals alive and free is liable, for the taking, neither to an action nor an indictment.

Vol. II.]

ALDRICH V. Wright.

[No. 2. Whether these distinctions are, in detail, sound or unsound, and whether some of them do or do not cease to exist when larceny ceases to be capital crime, they at least show a general recognition of a gradation of values; and if the common law furnishes no fixed and definite standard for a pecuniary measurement of the differences in the legal values of the various orders of creation, it does recognize mankind as far above, and wild vermin as far below, domestic poultry. And the test of the reasonable necessity of killing an individual of the highest order, emanating from the peculiar worth of that order, cannot be deduced from the peculiar worthlessness of the lowest. If the legal sacredness of all human life, ranking far above the value of property, is the sole reason for holding it reasonably necessary that an owner of property should submit to a trespass which he can only prevent by destroying such life, the legal inferiority of vermin life in its wild state, too base to be admitted to the lowest rank of property, is a sufficient reason for holding it reasonably necessary that an owner of property should prevent a trespass by the prompt destruction of such life. And if the remedy of an action at law for slight injuries-3 Bl. Com. 4; 4 Ib. 185; 1 Hale P. C. 481; 2 Bishop Cr. L. sec. 641-is an additional reason for requiring scrupulous care in resisting a felon, and for not killing a human trespasser at all, the absence of such a remedy in his case was an additional reason for using some other than inadequate measures of extreme gentleness, and for instantly employing a remedy likely to be lost by delay.

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Perhaps the statute upon which this suit is brought is to be regarded as elevating minks above the base character and position held by them at common law. But it does not elevate them to the rank of property, nor take them out of the class of wild vermin. And whatever elevation there is is intermittent, occurring only during a portion of each year. The statute is not a prohibition of killing them, but a regulation of the time when they may be killed, enacted not out of any tenderness for them. The object of the statute, hinted at in the title of the original Laws 1866, ch. 4228, — is, not that these "fur-bearing animals" shall not be killed, but that there may be more of them to be killed, and that killing them may be a more lucrative business. In the case of a man, the law surrounds his life with unparalleled safeguards for the sake of his life, conclusively presumed to be of incalculable value; in the case of a mink, it is not his life, but his pelt, that the statute takes an interest in. How impossible then it is to apply the severe tests of reasonably necessary defensive homicide, founded upon grand considerations of the sacredness of human life, to the reasonably necessary defensive destruction of vermin life, so far from being sacred in the contemplation of the statute and the common law. And when the rule of imminent danger has been so much applied in cases of homicide as to acquire a peculiar technical meaning, founded on and adapted to the sacredness of the subject matter of those cases, how probable it is that such a rule, applied to a case like this, without the qualifications and explanations necessary to adapt it to the subject matter of the suit, would convey erroneous ideas of the law, mislead the defendant and the jury, and work injustice.

The quantity, quality, and time of justifiable defensive force depend upon the reasonable necessity of each case; and that reasonable necessity,

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[No. 2.

depending upon the particular circumstances of the case, is a question of fact, like a question of reasonable use of land or water Bassett v. S. M. Co. 43 N. H. 569; Swett v. Cutts, 50 N. H. 439; Hayes v. Waldron, 44 N. H. 580; or reasonable time- Favor v. Philbrick, 5 N. H. 358; Goodall v. Streeter, 16 N. H. 97; Barker v. Barker, 16 N. H. 335; Watson v. Walker, 23 N. H. 492; Tufts v. Hayes, 31 N. H. 138; Knowlton v. Tilton, 38 N. H. 263; Odlin v. Gove, 41 N. H. 476; Tyler v. Webster, 43 N. H. 147; State v. Plaisted, 43 N. H. 413; Wallace v. Co. 44 N. H. 523; 2 Kent Com. 480 (contra, Morse v. Bellows, 7 N. H. 549, 566; -in Concord Bank v. Gregg, 14 N. H. 331, and Doe v. Thompson, 22 N. H. 217, the court found the fact from the evidence which was apparently submitted to the court); or reasonable place - Currier v. Currier, 2 N. H. 75; Flanders v. Lamphear, 9 N. H. 201; Rhoades v. Parker, 10 N. H. 86; Holmes v. Fisher, 13 N. H. 9; Miles v. Roberts, 34 N. H. 254; or reasonable cause to believe a man guilty - Eastman v. Keazor, 44 N. H. 518, 520; Lister v. Perryman, L. R. 4 H. L. 521; or reasonable cause to believe a dog vicious-Kittredge v. Elliott, 16 N. H. 77, 82; or reasonable sufficiency of a highway-Johnson v. Haverhill, 35 N. H. 74; Hall v. Manchester, 40 N. H. 410; Clark v. Barrington, 41 N. H. 44, 52; Howe v. Plainfield, 41 N. H. 135, 138; Winship v. Enfield, 42 N. H. 197; Chamberlain v. Enfield, 43 N. H. 356; or reasonable care in using a highway- Carlton v. Bath, 22 N. H. 559; Palmer v. Portsmouth, 43 N. H. 265; or reasonable care, diligence, or skill, in bailment and other cases-Leighton v. Sargent, 27 N. H. 460; Shepley v. Felt, 3 N. H. 121; Dow v. Sayward, 12 N. H. 271.

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The usual pretext for turning fact into law, is the convenience and importance of certainty and minute specification in the rules of action, by which men are required to govern themselves. 1 Bishop Cr. L. sec. 855; Gray v. Jackson, 51 N. H. 36. But, if turning the fact of reasonable necessity into a matter of law has been practically useful in cases of homicide and assault, the same metamorphosis extended, without limitation, to cases like this, would be productive of serious inconvenience and uncertainty. When the defendant was considering what to do, how much would he have been aided by advice to beware of violating the law, and suspend defensive operations until he had first tested the reasonable necessity of shooting, by such criteria as the distinction between trespass and felony, the dogma requiring a request to depart (modified as it is in cases of trespass vi et armis), the plea of son assault demesne, and the doctrine of molliter manus imposuit? How much certainty would he have derived from such a warning? It would seem to him that things had come to a strange pass if a man could not, without going through a course of legal study, be qualified to judge of the reasonable necessity of shooting minks caught in the act of chasing his geese, and taking forcible possession of his pond. And, if he had happened to be conversant with the doctrine of imminent danger, as it is generally laid down in reported cases of homicide and assault, instead of his course being cleared by that kind of knowledge, he would, by its guidance, have been plunged into inextricable difficulty. Applying that rule of imminent danger, he would probably conclude that he could not lawfully fire at the minks until they came so near their prey that his defence would be as dangerous as their attack.

Vol. II.]

ALDRICH v. WRIGHT.

[No. 2.

"All our jurists hold that a certain quantity of risk to life or limb justifies a man in shooting or stabbing an assailant; but they have long since given up in despair the attempt to describe in precise words that quantity of risk. They only say that it must be, not a slight risk, but a risk such as would cause serious apprehensions to a man of firm mind; and who will undertake to say what is the precise amount of apprehension which deserves to be called serious, or what is the precise texture of mind which deserves to be called firm? It is doubtless to be regretted that the nature of words and the nature of things do not admit of more accurate legislation. . . . . A man beset by assassins is not bound to let himself be tortured and butchered without using his weapons, because nobody has ever been able precisely to define the amount of danger which justifies homicide." 2 Macaulay, Hist. Eng. 368, 369 (Am. ed. 1849).

III. The claim that the defendant was liable if the geese could have been protected by driving them away from the minks, cannot be sustained.

Requiring the defendant to drive away the minks if he could, is an admission that he had a right to drive them away, and that they had no right to remain on his premises without his consent. But requiring him, if he could not drive them away from the geese, to drive the geese away from them, is a practical denial of his right to keep geese in his own pond or on his own land, if he could only keep them there by killing minks. It amounts to this: it being impracticable to permanently eject the assailants, he must banish the assailed; and the raising of geese being impossible, the raising of minks is compulsory. A freeholder, permitted to fire blank cartridges only to cover the endless retreat of his poultry before these marauders, and obliged to suffer such an enemy to ravage his lands and waters with boldness generated by impunity, is a result of turning the fact of the reasonable necessity of retreating to the wall before a human assailant into a universal rule of law. This rule practically compels the defendant to bring his poultry to the block prematurely, and to abandon an important branch of agricultural industry. His right of protecting his fowls is merely his right of exterminating them.

Not only is one species of his personal property extinguished, the freedom of rural life restricted, and a profit of husbandry cut off, but he is forced to surrender his domain to hostile occupation, his rights in real estate are materially impaired. The fee, to be sure, remains in him; but he involuntarily holds it in trust for the use of others, whom he is physically unable to expel, because the only defensive measure that would be effectual is prohibited. If the use of his land is taken from him for a private purpose, how can his constitutional right of acquiring and possessing property be thus infringed? If the use is a public one, how can his right be taken without compensation? Ash v. Cummings, 50 N. H. 591; Aiken v. B. C. & M. R. R. 51 N. H. 504, and other cases, admit the land-owner's freedom from the invasion of private use; and maintain his right to compensation for the inundation of his land for public use, — a use less inconsistent with the business of raising aquatic poultry, than the use of his land as a camp and nursery for destructive vermin. His right of compensation is annihilated; and his right of defence, established by the primary law of nature, and guaranteed by the common law and

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