"the ancient doctrine as to the duty of a person assailed to retreat as far as he can before he is justified in repelling force by force has been greatly modified in this country, and has with us a much narrower application than formerly. Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement, or even to save human life.”

While these two decisions, so contradictory in reasoning, are cited together in many cases as the twin harmonious pillars of the brutal doctrine they support,1 the real reason at the basis of such decisions is that of the Indiana case. In the West and South, where most of these authorities are found, it is abhorrent to the courts to require one who is assailed to seek dishonor in flight. The ideal of these courts is found in the ethics of the duelist, the German officer, and the buccaneer.

"The right to go where one will, without let or hindrance, despite of threats made, necessarily implies the right to stay where one will, without let or hindrance. These remarks are controlled by the thought of a lawful right to be in the particular locality to which he goes or in which he stays. It is true, human life is sacred, but so is human liberty. One is as dear in the eye of the law as the other, and neither is to give way and surrender its legal status in order that the other may exclusively exist, supposing for a moment such an anomaly to be possible. In other words, the wrongful and violent act of one man shall not abolish or even temporarily suspend the lawful and constitutional right of his neighbor. And this idea of the nonnecessity of retreating from any locality where one has the right to be is growing in favor, as all doctrines based upon sound reason inevitably will. . .

"But nothing above asserted is intended to convey the idea that one man, because he is the physical inferior of another, from whatever cause such inferiority may arise, is, because of such inferiority, bound to submit to a public horsewhipping. We hold it a necessary self-defense to resist, resent, and prevent such humiliating indignity, such a violation of the sacredness of one's person, — and that, if nature has not provided the means for such resistance, art may; in short, a weapon may be used to effect the unavoidable necessity."2

As this is the sentiment of so many courts in certain parts of the country, it is fair that it should be answered by another court from the same section.

1 Beard v. U. S., 158 U. S. 550; P. v. Hecker, 109 Cal. 451, 42 Pac. Rep. 307: Willis v. S., 43 Neb. 102, 61 N. W. Rep. 254.

2 S. v. Bartlett (Mo.), 71 S. W. Rep. 148, 151.

"No balm or protection is provided for wounded pride or honor in declining combat, or sense of shame in being denounced as cowardly. Such thoughts are trash, as compared with the inestimable right to live." 1

And Agnew, J., said: 2

"It is certainly true that every citizen may rightfully traverse the street, or may stand in all proper places, and need not flee from every one who chooses to assail him. Without this freedom our liberties would be worthless. But the law does not apply this right to homicide. The question here does not involve the right of merely ordinary defence, or the right to stand wherever he may rightfully be, but it concerns the right of one man to take the life of another. Ordinary defence and the killing of another evidently stand upon different footing. When it comes to a question whether one man shall flee or another shall live, the law decides that the former shall rather flee than that the latter shall die."

1 Charge approved in Springfield v. S., 96 Ala. 81, 11 So. Rep. 250. 2 C. v. Drum, 58 Pa. St. 9, 22.

The European law is generally favorable to the right to stand one's ground. Two reasons are given: that a man cannot be constrained to take the risk even of a retreat that seems safe, and that he cannot be obliged to yield his honor and dignity by a retreat. Opinion has not been unanimous. Julius Clarus (Lib. V., Homicidium, § 32) states that the commonly accepted opinion requires retreat, if safe, and he collects numerous authorities to that effect. To the same effect are the strong words of the Tribune Faure in the Conseil d'Etat: "Le citoyen qui repousse un outrage grave, n'est pas mis dans la nécessité d'opposer la force à la force; s'il frappe, s'il blesse, s'il tue, ce n'est que pour venger une injure et punir l'homme qui l'a offensé. Or, le droit de punir ne peut être confié qu'à l'autorité publique, et, en tout cas, il serait contre les règles de laisser l'offensé se constituer juge dans sa propre cause. Les tribunaux lui sont ouverts; c'est là qu'il doit demander la réparation qui lui est due " (quoted 37 Pand. Fr. Rec. 575). In the only reported French case upon this subject which has been found, the court took the same view: Min. Publ. v. Prime, Caen, Nov. 29, 1899, Pand. Périod. 1901. 2. 32, Rec. arr. Caen & Rouen, 1899. 1. 200. The prevailing doctrine in France is, however, contra. Thus Julius Clarus (loc. cit.), after stating the received opinion of his day, expresses his own opinion to the effect that one assailed need not retreat; and the same view is taken of the modern law, after collecting and comparing the authorities, by the authors of the Pandectes Françaises (Pand. Fr. Rec. vol. 37, p. 576). The German courts also, as one might expect, protect one who when assailed stands his ground and kills. Thus the Reichsgericht, on May 13, 1887 (Entsch. des R. G., Strafsachen, vol. 16, p. 69) said: "Das Gesetz, sowie dasselbe nicht bloss die Person des Angegriffenen, sondern neben dem Vermögen auch dessen Ehre durch das Recht der Selbstverteidigung hat schützen wollen, nicht hat verlangen können, dass als Mittel dem Angriffe zu entgehen, die Flucht auch dann gewählt werde, wenn dieselbe nicht ohne eigenes Opfer an berechtigten Interessen bewirkt werden kann, namentlich also, wenn sich solche nach den Anschauungen des gesellschaftlichen Verkehrslebens unter den gegebenen Umständen als schimpflich oder unehrenhaft darstellen würde.” The Italian law appears to be the same. Thus the Digesto Italiano (sub voce Difesa Legittima, no. 140) cites Impallomeni (Completo Trattato 1, 191): “La dignità individuale è anch'essa un diritto personale che non si può essere costretti ad abdicare. Riconosciuto che egli esercita un diritto difendendosi da un'ingiusta

...

In some cases, as all authorities agree, there is no need of retreat, but the assailed may kill the assailant if it is otherwise necessary to save his own life. Thus if retreat would not (so far as the assailed can see) diminish the danger, he may defend himself on the spot. And if one is assailed in his own dwelling-house, which is his castle, he is not obliged to withdraw therefrom and leave himself in that respect defenseless. Many authorities go further, and allow the assailed to stand his ground when he is attacked in the immediate vicinity of his dwelling-house, in his curtilege, and there is reasonable ground for arguing that a man's right to the protection of his house necessarily extends to the immediate neighborhood of it. In a few jurisdictions this doctrine is carried still further, and one is allowed to stand his ground and kill an assailant on his own premises, though not in the neighborhood of the dwelling-house. This appears to be the present doctrine of the Supreme Court of the United States. In Beard v. United States," where the defendant was assailed on his own prem

aggressione, sarebbe contradittorio imporgli tali condizioni che ne offendessero la libertà e la dignità."

The Supreme Court of Hungary (April 9, 1889, in a decision reprinted in 31 Rev. Pen. 279) proceeded upon a reasonable distinction. The facts proved showed that a son assailed by his father had killed in self-defense without retreating. The court, taking the usual European view of the question, held however that a son ought to retreat rather than kill his father.

...

The most ingenuous limitation is that laid down in the Pandectes Belges (vol. 16, p. 802), citing Haus, Droit pénal, no. 626: “Si la fuite était déshonorante comme le serait celle d'un militaire en uniforme, quand même il ne serait pas en service, il faut bien admettre le droit de résister quand des moyens autres que la fuite font défaut. Ils considéraient la fuite comme honteuse pour les militaires et les gentilshommes." 1 S. v. Peo, 9 Houst. (Del.) 488, 33 Atl. Rep. 257; U. S. v. Herbert, 2 Hayw. & H. (D. C.) 210, Fed. Cas. 153544; P. v. Macard, 73 Mich. 15, 40 N. W. Rep. 784; Conner v. S. 13 So. Rep. 934 (Miss.); C. v. Breyesse, 160 Pa. St. 451, 28 Atl. Rep. 824; S. v. Roberts, 63 Vt. 139, 21 Atl. Rep. 424 (semble); Bird v. S., 77 Wis. 276, 45 N. W. Rep. 1126. In Alabama retreat must be attempted unless it would increase the danger. Carter v. S., 82 Ala. 13, 2 So. Rep. 766.

Albertz v. U. S., 162 U. S. 499; Brinkley v. S., 89 Ala. 34, 8 So. Rep. 22; Elder v. S., 69 Ark. 648, 65 S. W. Rep. 938; S. v. Middleham, 62 Ia. 150, 17 N. W. Rep. 446; Eversole v. C., 95 Ky. 623, 26 S. W. Rep. 816; S. v. O'Brien, 18 Mont. 1, 43 Pac. Rep. 1091; S. v. Harman, 78 N. C. 515; Palmer v. S., 9 Wyo. 40, 59 Pac. Rep. 793. * Naugher v. S., 105 Ala. 26, 17 So. Rep. 24; Haynes v. S., 17 Ga. 465; Wright v. C., 8 Ky. L. Rep. 718, 2 S. W. Rep. 909; Smith v. C., 16 Ky. L. Rep. 112, 26 S. W. Rep. 583; P. v. Kuehn, 93 Mich. 619, 53 N. W. Rep. 721; Fitzgerald v. S., 1 Tenn. Cas. 505; S. v. Cushing, 12 Wash. 527, 45 Pac. Rep. 145.

Foster v. T., 56 Pac. Rep. 738 (Ariz.); Baker v. C., 93 Ky. 302, 19 S. W. Rep. 975: S. v. Hudspeth, 150 Mo. 12, 51 S. W. Rep. 483 (premises or the public highway); contra, Lee v. S., 92 Ala. 15, 9 So. Rep. 407.

$ 158 U. S. 550.

ises, the court held that he was not obliged to retreat; and though in his opinion Mr. Justice Harlan pointed out more than once that the defendant was " on his premises, outside of his dwelling-house," "where he had the right to be," he apparently decided the case on the general principle laid down in Erwin v. State and Runyan v. State. In a subsequent case, however, the doctrine of the two last cases was repudiated, and Beard v. United States was distinguished on the ground that in that case the defendant was assailed 'upon his own premises and it was held that the obligation to retreat was no greater than it would have been if he had been assailed in his own house." This is an untenable distinction, for under no circumstances can one claim that mere land is his castle, or defend it as he can defend a dwelling-house."

As to the general principle about which the American authorities are in such conflict, there should be no theoretical doubt. No killing can be justified, upon any ground, which was not necessary to secure the desired and permitted result; and it is not necessary to kill in self-defense when the assailed can defend himself by the peaceful though often distasteful method of withdrawing to a place of safety. The problem is the same now in America as it was three centuries ago in England. It is of course true that to retreat from an assailant with a revolver in his hand is dangerous, and one whose revolver is in his pocket is not to be despised; the hip-pocket ethics of the Southwest are doubtless based upon a deep-felt need. But because retreat is less often safe than in the days of knives and small-swords, it by no means follows that retreat when certainly safe should be less requisite. Because a man cannot safely retreat from a pistol, we may not infer that he need not safely retreat from a pitchfork or a blow of the fist.

The contrary argument based upon the supposed distinction between excusable and justifiable homicide we have seen to be erroneous, and to follow Foster's misunderstanding of the language of Coke. The conclusion of the courts which deny the duty to retreat is, as we have seen, more commonly rested upon two arguments: that no one can be compelled by a wrongdoer to yield his rights, and that no one should be forced by a wrongdoer to the ignominy, dishonor, and disgrace of a cowardly retreat.

1 Allen v. U. S., 164 U. S. 492, 498.
2 Wallace v. U. S., 162 U. S. 466.

As to the argument of right, the answer of the Pennsylvania court, already quoted, is sufficient. The law does not ordinarily secure the enjoyment of rights; it grants redress for a violation of rights. Sometimes, to be sure, equity by injunction or decree attempts to protect rights rather than to redress wrongs, but this is extraordinary. Still less frequently the law permits one to protect his own rights, but in no case may he do this unless in accordance with the interests of the state. The only property which the law permits him to protect by killing a wrongdoer is his dwellinghouse, and that only when its protection is necessary to the safety of his person. To test the proposed doctrine let us suppose that the owner of a large estate erects a rifle range, as he legally may, in the midst of it, and is about to shoot at a target; a trespasser, too strong to be removed by the owner, stands before the target and will not move; it will hardly be contended that the owner can continue his practice through the body of the trespasser. Yet this is the only method by which he may exercise his undoubted right to shoot.

The argument based upon the honor of the assailed is more elusive and more difficult to answer. The language of the Alabama court is, to be sure, logically conclusive; it convinces the intellect, but fails to touch the heart and the imagination, and leaves one of the same opinion still. The feeling at the bottom of the argument is one beyond all law; it is the feeling which is responsible for the duel, for war, for lynching; the feeling which leads a jury to acquit the slayer of his wife's paramour; the feeling which would compel a true man to kill the ravisher of his daughter. We have outlived dueling, and we deprecate war and lynching; but it is only because the advance of civilization and culture has led us to control our feelings by our will. And yet in all these cases sober reflection would lead us to realize that the remedy is really worse than the disease. So it is in the case of killing to avoid a stain on one's honor. A really honorable man, a man of truly refined and elevated feeling, would perhaps always regret the apparent cowardice of a retreat, but he would regret ten times more, after the excitement of the contest was past, the thought that he had the blood of a fellow-being on his hands. It is undoubtedly distasteful to retreat; but it is ten times more distasteful to kill. The position of the assailed is an unpleasant one. The law cannot help that; it is incapable of protecting him from the painful alternative; but the necessity of undergoing illegal injuries is