quitted, since the felony alleged in the indictment was disproved.1 Before the time of Foster the old law had been forgotten, and acquittal was a matter of course.2

It will thus appear that the history of the law of self-defense to the middle of the eighteenth century had been as follows. Selfdefense merely was no excuse, but ground for pardon; but it was an excuse in equity, and the equitable defense was at last accepted at law.3 Killing in due execution of law was justifiable. This meant at first killing under warrant or by custom; later private persons were permitted to execute the law upon felons in a few cases. These cases were almost without exception attacks by robbers: attempted murder or rape could not thus be justifiably prevented by a private person.

There seems no sufficient reason for distinguishing between killing a robber and killing a felon who is attempting murder or rape; but the law is explicit. It is thus summed up by Coke.

"If a thief offer to rob or murder B either abroad or in his own house, and thereupon assault him, and B defend himself without any giving back, and in his defence killeth the thief, this is no felony; for a man shall never give way to a thief, &c., neither shall he forfeit anything. So if any officer or minister of justice that hath lawful warrant," &c.

...

The expression "if a thief offer to rob or murder B," as shown both by the context and by the authorities cited, ineans if a thief come and demand B's money or his life, i. e. threatens homicide only as an alternative to robbery, and the force used in defense is used solely to prevent the consummation of the robbery. Even fatal force may be used for this purpose, "for a man shall never give way to a thief." Coke did not mean to suggest that one could kill a thief who threatened murder but not robbery; nor did Stanford, nor Hale, nor Hawkins.8 6 A different turn was

given the words by Foster.

Killing for which justification was allowed must be necessary;

1 2 Hale P. C. 258.

2 Fost. P. C. 273.

• The old French law took the same course; see Pandectes Françaises, Rec. vol. 37,

that is, it was permitted only when to refrain from killing the malefactor would necessarily leave him free to commit his crime and escape.1

II.

Thus stood the law at the time Sir Michael Foster published his essay on Homicide. He complains of "darkness and confusion upon this part of the law"; "the writers on the Crown-law

have not treated the subject of self-defence with due precision." He distinguishes between justifiable and merely excusable self-defense, the latter at common law requiring a pardon and causing forfeiture. The rules which he laid down are still commonly repeated.

"In case of justifiable self-defence the injured party may repel force by force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoreth by violence or surprize to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable." 4 "Where a known felony is attempted against the person, be it to rob or murder, here the party assaulted may repel force by force; . . . and if death ensueth, the party so interposing will be justified. In this case nature and social duty cooperate." 5

Here we see two errors contributing to bring about an erroneous statement of law. The first is a misunderstanding of Coke's and Hale's phrase (here cited from Hale), "to rob or murder." Foster understands the passage in Hale to mean, if a thief comes to rob a man, or if he comes to murder him, the assailed may justifiably kill; and he generalizes that if any felony is attempted the killing in defense will be justifiable, not excusable. The other error is a result of the philosophy of the time. The right of selfdefense, he argues, is founded in the law of nature, and cannot be superseded by a law of society. In cases of necessity the law of society fails; and the victim is remitted to his natural rights. The fallacy of such an argument in a legal treatise is more apparent now than at the time Sir Michael Foster wrote.

This distinction between justifiable and merely excusable homi

1 Coke 3d Inst. 55; 1 Hale P. C. 479; 1 Hawk. P. C. 168. "Inevitable necessitie."

Stanf. P. C. 13b.

2 First ed., 1762.

4 Ibid., 273.

8 Crown Law, 273.

5 Ibid., 274.

2

cides, opposed as it was to every preceding authority, has been very generally accepted without examination. It was repeated almost word for word by East and Russell. Owing to the absence of modern cases, the question has become a purely academic one in England.

4

The distinction between justifiable and excusable homicide before this time was a distinction between a killing for which one would be acquitted and one for which one must be convicted and pardoned. Foster for the first time uses it as the test of a case where one whose life is in danger must retreat before killing. To pass upon the correctness of this theory, it is necessary to examine the history of the law in this matter.

As has already been seen, before one could kill justifiably absolute necessity must be shown. If the killing were in the effort to effect an arrest, the necessity could not properly be avoided by retiring or permitting the escape, since that would be a dereliction of duty; and if the killing were to prevent robbery it could not properly be avoided by leaving the robber in possession of the booty, since the object of the law in giving the justification would not then be attained.5 But if one murderously assailed could escape the attack by retreating, he must retreat rather than kill. "For though in cases of hostility between two nations it is a reproach and piece of cowardice to fly from an enemy, yet in cases of assaults and affrays between subjects under the same law, the law owns not any such point of honour, because the king and his laws are to be the vindices injuriarum, and private persons are not trusted to take capital revenge one of another."7

In one case a person attacked might properly defend himself against attack without retreating, that is, where he was attacked in his dwelling-house. He might defend his castle against felonious

1 An admirably correct statement of the true distinction will be found in Pond v. P., 8 Mich. 150, 177, per Campbell, J.

21 P. C. 271.

8 3 Russ. Cr. (6th ed.) 213.

Steph. Dig. Cr. L. 160 n. Stephen emphasizes the duty of retreat if possible. 5 Coke, 3d Inst. 56.

6 F. Coron. 297 (3 Ed. III.); 43 Ass. pl. 31. "A faire deffinition de homicide se defendendo; doyomus dire que il est properment quant A. fait affray sur B. et luy ferist, et B. s'enfua tant come il peut pur salvation de sa vie, issint que il est venus a un streit, ouster que il ne peut fuer, et A. continua l'assant, per que B. luy ferist et occida, ceo est homicide se defendendo." Stanf. P. C. 15.

7 I Hale P. C. 481. Acc. Daver's Case, Godb. 288 (semble); Calfielde's Case, I Ro. 189.

attack without retreating from it, since that would be to give up the protection of a "castle," which the law allows him.1

The line between legal resistance and duty to avoid by retreat the necessity of killing does therefore coincide with the line between justifiable and unjustifiable homicides in the old law, that is, between cases of execution of the law and cases of private defense; but by no means with the line drawn by Foster between justifiable and excusable homicide.

There is, however, another principle, entirely different in origin, which requires one under some circumstances to retreat before killing; and this applies only in cases which come under Foster's category of excusable self-defense. In case of mutual combat neither party may kill during the combat and be either justified or pardoned; for either by bringing on the combat or at least by consenting to it and voluntarily taking part in it he has become responsible for the necessity and is guilty of the death both at law and in equity. He can protect himself only by clearing himself from this responsibility. This he can do by withdrawing from the combat in such a way that anything which happens subsequently is chargeable not to him, but entirely to the other party, who wrongly continues or renews the attack. This is expressed by the rule that in case of chance-medley one must "flee to the wall" before he can excusably kill.2 One who assails another intending to kill him cannot excusably kill even if he retreats to a wall; he must not merely try to escape, but he must actually escape from the conflict and put an end to it, or he will be guilty if he kills. It will be noticed that the retreat in this case is not for the purpose of avoiding unnecessary killing; even a necessary killing in such a case, as where the conflict is so hot that neither party can withdraw, will not be excused. Its only purpose is to put an end to the conflict, or at least to free the killer from further responsibility for it. "Otherwise," said Sir Matthew Hale, "we should have all cases of murder or manslaughter, by way of interpretation, turned into se defendendo."

Foster seems not to have distinguished between the retreat to avoid the necessity to kill, and the retreat to avoid responsibility for the combat; and in view of the fact that one sort is required in all cases where there is no true justification, and the other sort is

1 26 Lib. Ass. pl. 23; 21 H. VII. 39, pl. 50; R. v. Ford, J. Kel. 51; 1 Hale P. C. 486 2 F. Coron. 284, 286; 1 Hale P. C. 479, 482. 4 Ibid. 482.

I Hale P. C. 479.

not required where the slayer is not in fault, his erroneous distinction between justifiable and excusable homicide appears the more specious, and his rule that retreat was not necessary in justifiable felonies follows naturally.

III.

Since Foster's time the law of England upon the duty of retreat has not been brought into the courts; Stephen1 speaks of the law contained in the authorities as "a curious relic of a time when police was lax and brawls frequent." In this country, however, the matter has frequently been considered, and in several jurisdictions it has been held that one who, being without fault, is murderously assailed may stand his ground and justifiably kill his assailant. On the other hand, in several jurisdictions it is held that if the necessity of killing may be safely avoided by retreating, the party assailed must retreat rather than kill.3

The cases which support the former opinion are based upon one of two contradictory grounds: 1, that they are following English authority; 2, that they are opposed to English authority, but the conditions of the new country require a different rule. The first ground is that alleged in the leading case of Erwin v. State. The court explained elaborately Foster's distinction between excusable and justifiable homicide, and based its decision upon that distinction. On the other hand, in Runyan v. State, the other leading case upon this subject, it was argued that

1 Dig. Cr. L. 160 n.

* La Rue v. S., 64 Ark. 144, 41 S. W. Rep. 53 (but see Elder v. S., 69 Ark. 648, 65 S. W. Rep. 938); P. v. Lewis, 117 Cal. 186, 48 Pac. Rep. 1088 (semble); Ritchey v. P., 23 Col. 314, 47 Pac. Rep. 272 (statutory); Ragland v. S., 111 Ga. 211, 36 S. E. Rep. 82; Page v. S., 141 Ind. 236, 40 N. E. Rep. 745 ; S. v. Hatch, 57 Kan. 420, 46 Pac. Rep. 708; Holloway v. C., 11 Bush (Ky.) 344 ; McClurg v. C., 17 Ky. L. Rep. 1339, 36 S. W. Rep. 14; McCall v. S. (Miss.), 29 So. Rep. 1003; S. v. Bartlett (Mo.), 71 S. W. Rep. 148; Willis v. S., 43 Neb. 102, 61 N. W. Rep. 254; S. v. Kennedy, 7 Nev. 374; Erwin v. S., 29 Oh. St. 186; Hays v. T. (Okl.), 52 Pac. Rep. 950; Nalley v. S., 30 Tex. App. 456, 17 S. W. Rep. 1084 (statutory); Stoneham v. C., 86 Va. 523, 10 S. E. Rep. 238.

3 Allen v. U. S., 164 U. S. 492; U. S. v. King, 34 Fed. Rep. 302; Henson v. S., 120 Ala. 316, 25 So. Rep. 23; S. v. Brown (Del.), 53 Atl. Rep. 354; U. S. v. Herbert, 2 Hayw. & H. (D. C.) 210, Fed. Cas. 15354a; Davison v. P., 90 Ill. 221; S. v. Donnelly, 69 Ia. 705, 27 N. W. Rep. 369; Pond v. P., 8 Mich. 150 (semble); S. v. Rheams, 34 Minn. 18, 24 N. W. Rep. 302; P. v. Constantino, 153 N. Y. 24, 47 N. E. Rep. 37; S. v. Gentry, 125 N. C. 733, 34 S. E. Rep. 706; C. v. Drum, 58 Pa. St. 9; S. v. Summer, 55 S. C. 32, 32 S. E. Rep. 771; S. v. Roberts. 63 Vt. 139, 21 Atl. Rep 424; S. v. Zeigler, 40 W. Va. 593, 21 S. E. Rep. 763.