RETREAT FROM A MURDEROUS ASSAULT.

TRUE man, who is without fault, is not obliged to fly from an assailant who by violence or surprise maliciously seeks to take his life, or to do him enormous bodily harm." These words of the Supreme Court of Ohio were quoted with approval and followed by the Supreme Court of the United States in 1895.1 Two years later the same court sustained a charge to the effect that "if he is attacked by another in such a way as to denote a purpose to take away his life, or to do him some great bodily harm he may lawfully kill the assailant . . . provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling him without killing him, if it be in his power."

These contra

dictory views, thus held by the same court at substantially the same time, have pretty evenly divided the jurisdictions in this country. One view must be right; both cannot be. But to choose with confidence the right theory requires a somewhat careful examination of the history of the law of self-defense.

I.

It is almost an axiom of our law that a man who kills another in the necessary defense of himself from death or even from serious bodily harm is excused, and must be acquitted when indicted. So reasonable is this doctrine, that a modern lawyer can hardly believe that homicide in self-defense was once a capital offense; and a modern judge is greatly tempted to misread the old authorities in the light of modern notions of justice, and to misapply old precedents to the damage of contemporary administration of law. Yet the right to kill in self-defense was slowly established, and is a doctrine of modern rather than of medieval law.

From the beginning of the jurisdiction of the king's courts over crime to the reign of Edward I. homicide could be justified only

1 Beard v. U. S., 158 U. S. 550.

2 Allen v. U. S., 164 U. S. 492.

Fost. C. L. 273; R. v. Bull, 9 C. & P. 22; S. v. Burke, 30 Ia. 331; C. v. Mann, 116 Mass. 58; S. v. Brooks, 99 Mo. 137, 12 S. W. Rep. 633; Shorter v. P., 2 N. Y. 193; Young v. S., 11 Humph. (Tenn.) 200.

when done in execution of the king's writ, or by authority of a custom by which a thief hand-having and back-bearing, an outlaw, or perhaps other manifest felons, might be taken by force without a warrant;1 in short, in cases where the homicide was committed in execution of the law. In all other cases, whether of misadventure or of necessary self-defense, the defendant could set up no justification but must be convicted; to use the words of Pollock and Maitland, he deserved but needed a pardon.2 Thus in the Shropshire eyre of 5th John, "Robert of Herthale, arrested for having in self-defense slain Roger, Swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter." The king "de gracia sua et non per judicium" issued a pardon in such cases. On the other hand where one in pursuit of a robber escaping from arrest beheaded him as he ran, the act was justifiable; and one who in resisting a robber killed him was acquitted; but a woman who killed to defend herself from rape was not acquitted. The line between homicide in execution of the law and homicide by misadventure or se defendendo was not yet clearly defined; but the distinction was well established.

It had become the practice of the Clerks in Chancery to issue a writ (similar to the writ de odio et atia) to inquire whether a homicide for which a man was under arrest had been committed "by misfortune, or in his own defence, or in any other manner without felony"; but by the Statute of Gloucester this was forbidden, and it was provided that a verdict should be found before the justices in eyre or gaol-delivery, and then "by the report of the justices to the king the king shall take him to his grace, if it please him." 9

1 2 P. & M. Hist. 476.

2 2 P. & M. Hist. 477; and see the extract from an old Precedent Book there quoted: "By way of judgment we say that what you did was done in self-defense; but we cannot deliver you from your imprisonment without the special command of our lord the king."

I Seld. Soc. 31.

4 B. N. B. pl. 1216.

5

4 Staff. Coll. 214; see also B. N. B. pl. 1084.

6 Mait. Pl. Glouc. 94 (translated, Kenny, Cas. Cr. L. 139).

7 Page, North. Ass. Rolls 85. See a strong case the other way in the same eyre,

ibid. 94.

8 6 Ed. I. c. 9.

9 This does not indicate a more liberal treatment of such cases, as Coke (3d Inst. 55, following the suggestion in 21 Ed. III. 17, pl. 23) supposes, but the contrary.

The law as it was in the time of Edward I. remained long unchanged. One protecting himself from robbery or executing the law might kill and be justified.1

"Where a man justifies the death of another, as by warrant to arrest him, and he will not obey him, or that he comes to his house to commit burglary and the like, if the matter be so found the justices let him go quit without the king's pardon; it is otherwise where a man kills another by misfortune, &c." 2

In Compton's Case Thorpe, C. J., said:

"When a man kills another by his warrant he may well avow the fact, and we will freely acquit him without waiting for the King's pardon by his charter in the case. And in many other cases a man may kill another without impeachment, as if thieves come to rob a man, or to commit burglary in his house, he may safely kill them, if he cannot take them. And note how it was with a gaoler who came to the gaol with a hatchet in his hand, and just then the prisoners had broken their irons, and were all ready to have killed him, and they wounded him sorely, but with the hatchet in his hand he killed two, and then escaped, &c. And it was adjudged in this case by all the council that he would not have done well otherwise, &c. Likewise he said that every person might take thieves in the act of larceny, and felons in the act of felony, and if they would not surrender peaceably, but stood on their defence, or fled, in such case he might kill them without blame, &c."

But if one killed another by misfortune or in necessary self-defense his chattels were forfeited, and he must get the king's pardon.*

"It was presented that a man killed another in his own house se defendendo. It was asked whether the deceased came to have robbed him; for in such case a man may kill another though it be not in self defense. Quod nota. And the twelve said not. Wherefore they were charged to tell the way how &c. it happened, whereby he should obtain the king's pardon.'

And if the killing were unnecessary not only could there be no acquittal, but there would not even be a pardon.

1 F. Coron. 330 (3 Ed. III.); 26 Lib. Ass. pl. 23 (translated, Kenny, Cas. Cr. L. 137); 26 Lib. Ass. pl. 32.

2 F. Coron. 261 (T. 22 Ed. III.).

3 22 Lib. Ass. 97, pl. 55 (translated, Beale, Cas. Cr. L. 316).

4

21 Ed. III. 17, pl. 23; 44 Ed. III. 44, pl. 55 (semble); 2 H. IV. 18, pl. 6; F. Coron

284, 287.

F. Coron. 305 (3 Ed. III.).

"Note that at the delivery of Newgate, before Knyvet [C. J.] and Lodelow [C. B.] it was found that a chaplain se defendendo slew a man, and the justices asked how. And [the jurors] said that the man who was killed pursued the chaplain with a stick and struck him, and he struck back, and so death was caused. And they said that the slayer, had he so willed, might have fled from his assailant. And therefore the justices adjudged him a felon, and said that he was bound to flee as far as he could with safety of life. And the chaplain was adjudged to the Ordinary." 1

The pardon in cases of self-defense was a matter of course; the speaking to the king was naturally a mere form; the Chancellor signed the pardon in the king's name. But it was needless to keep up a form based upon a rule of law obviously opposed to equity. The Chancellor as the dispenser of equity soon dispossessed the Chancellor as the mere keeper of the great seal. As early as the beginning of the reign of Edward III. he relieved against judgments of conviction in such cases.

"Note that when a man is acquitted before the justices errant for death of a man soy defendendo, the process is such, that he shall have the writ of the Chief Justice, within which writ shall be contained all the record of his acquittal, to the Chancellor; who shall make him his writ of pardon without speaking to the King by course of law. Such a man is bailable after the acquittal, &c."2

"Scrope [C. J.] and Louther, Justices, ordered the prisoner to remove the record into the Chancery; and the Chancellor made him a charter in such case without speaking to the king."

In 4 Henry VII. the report reads:

"In the Chancery it was moved that one was indicted because he killed a man seipsum defendendo, &c. And the Chancellor said that the indictment should be removed into the King's Bench, and that he would grant a pardon of common grace unto the party according to their form. And it was suggested by the Sergeants at the bar that there was no need of having any pardon in this case; for here the Justices would not arraign him, but dismiss him, &c. ; but if the indictment were for felony, and the party put himself upon the inquest for good and ill according to the Statute of Gloucester, c. 9, then if the inquest found that he did it se defendendo the Justices would adjudge him to prison until he had a pardon; but here he should be dismissed, and not lose his goods.

1 43 Ass. pl. 31: translated Kenny, Cas. Cr. L. 141.

2 F. Coron. 361 (3 Ed. III.).

F. Coron. 297 (3 Ed. III.).

"FAIRFAX [Justice of the King's Bench], who was in the Chancery, went to his companions, and returned and said, that their custom was to take inquest and inquire whether he did it se defendendo or not, and if so found he lost his goods, &c.; and so in either way he should have a pardon by his opinion. And so it seemed to the Chancellor that a charter should be

granted.

"Note the opinion of the Justices of the Bench against the Sergeants." 1

Though in a difference between the bench and the bar the bench triumphs for a time, the opinion of the bar, if tenaciously held, will in the end prevail. In 1534 the jury found that the accused killed his victim in his own defense. "Wherefore he should have his charter of pardon. And Port, J. adjudged that he should go adieu. Quod nota."2 This was perhaps the first case of self-defense after the statute 24 Henry VIII. c. 5.3 This statute indicated the feeling of the time against a formal conviction in such cases; and though in terms it referred only to forfeiture, it was taken as providing for acquittal without formal pardon. It was, moreover, liberally interpreted to cover similar cases.

Thus the equitable defense, partly as the result of a statute and partly by the liberality of the courts of common law, became a legal defense. When the necessity ceased for a formal pardon in cases clearly not within the statute one cannot say. The pardon was so purely a matter of form that Coke does not mention it; 5 and though Lord Hale speaks of it incidentally, in his time it would seem that one who killed in necessary self-defense was ac

1 4 H. VII. 2, pl. 3: So B. Chart. de Pardone 65, “Home avera chartere de perdon de course hors del Chancerie pur mort de home se defendendo, 4 H. VII. 2." 2 26 H. VIII. 5, pl. 21.

8 "Forasmuch as it hath been in question and ambiguity, that if any evil disposed person or persons do attempt feloniously to rob or murder any person or persons in or nigh any common highway . . . or in their mansions . . . should happen in his or their being in such their felonious intent to be slain by him or them whom the said evil-doers should so attempt to rob or murder; . . . the said person . . . should for the death of the said evil disposed person forfeit or lose his goods and chattels for the same, as any other person should do that by chance-medley should happen to kill or slay any other person in his or their defence; . . . be it enacted . . . That if any person... be indicted or appealed of or for the death of any such evil disposed person [he] shall not forfeit or lose any lands, tenements, goods, or chattels . . . but shall be thereof and for the same fully acquitted and discharged, in like manner as the same person or persons should be if he or they were lawfully acquitted of the death. . . ."

+ Cooper's Case, Cro. Car. 544.

Б 3d Inst. 55.

6 I P. C. 489.