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cuses for damage done in economic improvements must be collated in one group, not separated under Nuisance and Case, where their common bearings are lost sight of.

In arranging, the order of treatment for these policies, those should come first which are needed for the understanding of the others. In the order here adopted, it will be noticed that the two placed last (Official Immunity, and Legislative License) serve to prepare the first-year student, by a natural gradation for entering upon the study of the constitutional principles there involved.

TITLE A: EXCUSES BASED ON THE PLAINTIFF'S OWN CONDUCT OR CONDITION

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549. HERBERT SPENCER. Justice: being Part IV of the Principles of Ethics (Appleton ed., 1891, p. 15). Chap. II, Human Justice. The law of relation between conduct and consequence, which, throughout the animal kingdom at large, brings prosperity to those individuals which are structurally best adapted to their conditions of existence, and which, under its ethical aspect, is expressed in the principle that each individual ought to receive the good and the evil which arises from its own nature, is the primary law, holding of all creatures. . . . Of man, as of all inferior creatures, the law by conformity to which the species is preserved, is that among adults the individuals best adapted to the conditions of their existence shall prosper most, and that individuals least adapted to the conditions of their existence shall prosper least - a law which, if uninterfered with, entails survival of the fittest, and spread of the most adapted varieties. And as before so here, we see that, ethically considered, this law implies that each individual ought to receive the benefits and the evils of his own nature and consequent conduct, - neither being prevented from having whatever good his actions normally bring to him, nor allowed to shoulder off on to other persons whatever ill is brought to him by his actions. . . . The law thus originating, and thus ethically expressed, is obviously that which commends itself to the common apprehension as just. Sayings and criticisms daily heard imply a perception that conduct and consequence ought not to be dissociated. When, of someone who suffers a disaster, it is said "He has no one to blame but himself," there is implied the belief that he has not been inequitably dealt with. The comment on one whose misjudgment or misbehaviour has entailed evil upon him, that "he has made his own bed, and now he must lie in it," has behind it the conviction that this connexion of cause and effect is proper. Similarly with the remark - "He got no more than he deserved." A kindred conviction is implied when, conversely, there results good instead of evil. "He has fairly earned his reward;" "He has not received due recompense;" are remarks indicating the consciousness that there should be a proportion between effort put forth and advantage achieved that justice demands such a proportion.

SUB-TITLE (I): PLAINTIFF'S OWN AGGRESSION ON DEFENDANT (DEFENDANTS' SELF-DEFENCE)

550. T. RUTHERFORTH. Institutes of Natural Law; being a course of lectures on Grotius de Jure Belli et Pacis. (1832, 2d Amer. ed., book I, c. XVI; book II, c. V; pp. 187, 327.) Right of defence, in what founded. Amongst the other principles, from whence any other man may derive a right over the person of any other, I mentioned some crime or injury on his part over whose person such

right is acquired.

Now the rights which are derived from hence may be divided into such as arise from any injury before it is committed, and such as arise from it after it is committed.1 Those rights which arise from an injury before it is committed are called rights of defence. . .

I. The great question concerning this right of defence is, how far it extends; what liberty the law of nature allows, or what may lawfully be done, in order to prevent an injury which any one designs to do us.

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Before we can determine any thing with certainty upon this question, it will be necessary to inquire into the true principle upon which the right of defence depends. A right to our life, or to our goods, means no more than a liberty of preserving them or keeping possession of them. . . . Now our endeavour to keep possession of a thing, when any one attempts to take it from us, is the defence of ourselves in the possession of it; and since, where the thing is our own, or where we have a right to it, this endeavour is consistent with the law of nature; it follows, that where we have a right to a thing, our defence of ourselves in the possession of it is lawful; or that a right of defence is implied in the very notion of our having a right to a thing.

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Right of defence indefinite in its extent. If this then is the principle upon which the right of defence depends, we cannot expect to find that the law of nature has exactly defined how far we may go, or what we may lawfully do in endeavouring to prevent an injury, which any one designs and attempts to do us. The law allows us to defend our persons or our property: and such a general allowance implies, that no particular means of defence are prescribed to us. We may, however, be sure that whatever means are necessary must be lawful. . . . From hence it follows that he who attempts to injure us gives us an indefinite right over his person, or a right to make use of such means to prevent the injury, as his behaviour and our situation make necessary.

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Defence of life. These general principles will, perhaps, be better understood, if we apply them to some particular instance.2 If a man is attacked with a plain design to kill him; as the law of nature does not oblige him to part with his life, he is at liberty to stand upon his defence, and has a right, against the aggressor, to do whatever is necessary for preserving himself from the hurt intended him.

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Defence against slight personal injuries. Strict justice would allow a man to repel the slightest injury to his person, such as a blow or a box on the ear, by any means which the aggressor makes necessary. The principle so frequently mentioned already is applicable to this case. As the law of nature does not oblige a man to submit even to such injuries as these, he is naturally at liberty, or has an indefinite right, to repel them. But where the suffering is so slight to the person attacked, and the much greater evil of death would be the consequence to the aggressor, if defence was carried to the utmost rigour of strict justice, natural benevolence would teach a man rather to bear the injury, than to ward it off at so great an expense to the aggressor, as that of his life. . . .

Defence of our goods. As the law of nature does not oblige us in strict justice to part with our lives, or our limbs, or our chastity, and does, by not obliging us to part with them, allow us to defend our person, so neither does it oblige us to give up our goods to those who would unjustly rob us of them. And from this natural liberty of keeping our goods, in opposition to those who would un

1 Grotius, Lib. II, Cap. I, § II. 2 Grotius, Lib. II, Cap. I, § 111.

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justly take them from us, our right of defence arises (that is, our right over their person) as far as such a right is necessary for preventing their attempt. It is plain from the foundation of this right, that it must be an indefinite one, or that we are not naturally debarred from proceeding to extremities in the defence of our goods. . . . Grotius, indeed,1 had a favorite principle in his mind, that we ought not to take away any one's life immediately or directly for the sake of preserving our goods. He allows, however, that we may defend them till our own life is in danger, and then we may justly kill the robber: because in these circumstances, the robber loses his life, immediately or directly, for the sake of preserving our own life, but remotely only, or indirectly, for the sake of preserving our goods. Upon this principle, as he imagines, we are to account for the distinction which the laws of Moses, of Solon, of Plato, and of the Twelve Tables, have made between a thief who robs in the day and a thief who robs in the night; when they allow the latter to be killed, but forbid killing the former. . . . Since, then, such a defence of our goods as may end in the death of him who endeavours to take them from us has been shown to be consistent with natural justice; the only remaining inquiry is, whether it is consistent with benevolence, or whether, for the sake of preserving the life of the robber, we ought not, in tenderness to his welfare, though not in strict justice, to part with the goods which he endeavours to deprive us of. . . . One thing, however, benevolence seems strongly to recommend to us, which is, to give the robber as good notice as we can and as the disturbance into which he throws us will permit us to give him, that we are determined to defend our property by all such means as he shall make necessary: and when we have done this, if he persists in his design, the fault will be entirely his own, and no want of kindness to him can reasonably be charged upon us, whatever may be the consequence of his violence.

II. The liberty of defence, which we have now been explaining, is greatly abridged, where the parties concerned are members of the same civil society. . . . Individuals are restrained by the act of civil union, from defending themselves against an injury, by their own private force, and at their own discretion; and are obliged to apply to the society, or to the civil magistrate, acting for the society, to defend them by the use of the common force, under the conduct of the common understanding. . . . An individual is understood, by the act of civil union, to part with his right of private defence; not merely because this act places him under the protection of a civil society, but because it places him under the protection of a civil society which stands engaged to protect those who are about to do him the injury, as well as to protect him who apprehends himself to be likely to suffer it. This act implies, not only that he is willing to acquire a right of being protected by the common force against any causeless harm, which they might possibly do him, but, likewise, that he consents to their having a right of being protected by the same force against any causeless harm which he might possibly do them. . . .

Notwithstanding mankind are now united into civil societies, yet the right of private defence still subsists, where civil jurisdiction ceases.2 . . . Civil jurisdiction may cease either in fact, or of right. It ceases, in fact, where any person has a right to the protection of the society, but the society cannot in fact give him protection. . . . When civil jurisdiction thus ceases in fact, it may cease

1 Grotius, Lib. II, Cap. I, § 23. .

2 Grotius, Lib. I, Cap. III, § 2.

either for the present instant only or for some indefinite length of time. Civil jurisdiction ceases, in fact, for the present instant, when the injury which threatens us is so immediate, that the public (or the civil magistrate for the public) cannot come to our assistance in time enough to prevent or to repel it; that is, when we are in such circumstances that we cannot possibly be defended at all, unless we defend ourselves by our own private force.

But yet, if we consider any person as a member of civil society, we shall find, that, even in these circumstances, it is not every injury, which will justify him in proceeding to extremities. I do not mean, that the injury, with which he is threatened, may be so remote or so uncertain as to give him time to apply to the society and to obtain the assistance of the public to guard him against it. There can be no doubt of his being obliged, as a member of civil society, to have recourse to the society, where the injury is of this sort. . . . But what I mean is, that the injury, though it is both immediate and certain, may be too small, in its own nature, to justify him in taking away the life of the aggressor, or in doing him any grievous harm, in order to prevent him from putting his design in execution. . . . Lesser injuries, where men live in a state of society, may commonly be repaired, after they are over. . . . The loss of life, indeed, or the loss of chastity, are, in their own nature, irreparable injuries. . . . Sometimes injuries of a lower sort, though they are not irreparable in their own nature, are irreparable by accident. . . . Of this sort, we may reckon the loss of goods, where the person who attempted to steal them is unknown; or where, though he is known, there is a moral certainty that the public can never interpose so as to obtain the restitution of them. The rules, that ought to be observed in these circumstances, are the same that ought to be observed in a state of nature.

551. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1763-1765. Book III, p. 3.) The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens, is chargeable upon him only who began the affray. For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself. But care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

552. IBBOTSON v. PEAT. (1865. 3 H. & C. 644, 649.) POLLOCK, C. B. Then, the defendant by his plea, says, "You have done me some wrong, and I have been endeavouring to redress that wrong by doing some wrong to you." As a general proposition, it may be laid down, that cannot be done. If a person is at

tacked by force, he may defend himself by force. But, in general a person cannot, because a wrong has been done to him, commit some other wrong for the purpose of repairing the injury; but he must endeavour to obtain redress in a lawful manner. As my brother BRAMWELL suggests, if a person libels another, the latter is not justified in horsewhipping him; and if a person horsewhips another, the latter is not justified in libelling him. On these grounds it appears to me that the plea is bad.1

Topic 1. Defence of One's Own Person

SUB-TOPIC A. BY BATTERY

553. WILLIAM RASTELL. A Collection of Entrees, Declarations, Barres, etc. (1566. Trespass, fol. 553.) “Bar de Son Assault Demesne." Predictus R. J. et W. M. per J. N. attornatum suum veniunt et defendant vim et injuriam etc., et quoad venire vi et armis non culpabilis etc., et quoad residuam transactionem predictam superius fieri supponit, iidem R. J. et W. M. dicunt quod predictus H. eisdem festo et anno apud W. predictum in ipsos R. J. et W. M. insultum fecit et ipsos verberasse, vulnerasse, et male tractasse voluit, per quod iidem R. et W. adtunc ibidem se ipsos erga prefatum H. defenderint, et dicunt quod damnum, si quod eidem H. adtunc et ibidem evenit, hoc fuit de insultu ipsius H. proprio et in defensione ipsorum R. et W. et hoc parati sunt verificare.

554. ANON. The Attorney's Practice in the King's Bench. (1750. 3d ed., Vol. II, p. 63, Vol. I, p. 413.) Plea, son assault demesne. And the said T. K. by M. P. his attorney, comes and defends the force and injury, when, etc., and as to the coming with force and arms, and whatever else is against the peace of our said lord the now king, he the said T. saith he is not guilty thereof; and of this he puts himself upon the country; and the aforesaid A. R. likewise: And as to the residue of the said trespass above supposed to be done, the said T. saith, that the said A. R. ought not have or maintain her action therefore against him, because he saith, that the said A. at the time when the said trespass is above supposed to be done, at the said parish of St. Anne within the liberty of Westminster in the county of Middlesex aforesaid, with force and arms, etc., made an assault upon him the said T. and would then and there have beat, wounded, and evilly treated him the said T., if he the said T. had not then and there forthwith defenced himself against the said A., and so the said T. saith, that if any mischief or damage then and there happened to the said A. it was occasioned by the said assault made by her the said A. and in the defence of him the said T., and this the said T. is ready to verify: Wherefore he prays judgment, if the aforesaid A. ought to have or maintain her action aforesaid against him, etc. 1

Replicatio de injuria sua propria. And the said C. says, that he, by any

1 [CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS EXCUSE: A. J. Willard, "Principles of the Law: Personal Rights," c. XXV, Self-Defence, pp. 204-215.

Henry Sidgwick, "Elements of Politics," c. IX, § 1, par. (3).

Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XIII, § 425, p. 422.

William Paley, "Principles of Political and Moral Philosophy," B. IV, c. I (Vol. II, p. 2).

Charles S. M. Phillipps, "Jurisprudence," B. I, c. I, § 13, p. 87.]

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