The Online Library of Liberty

A project of Liberty Fund, Inc.

• Pubusher's Note
• Foreword
• Preface to the First Edition
• Preface to the Eighth Edition
• Introduction
• Outline of Subject: the True Nature of Constitutional Law
• Part I: The Sovereignty of Parliament
• Chapter I: The Nature of Parliamentary Sovereignty
• Chapter II: Parliament and Non-sovereign Law-making Bodies
• Chapter III: Parliamentary Sovereignty and Federalism
• Part II: The Rule of Law
• Chapter IV: The Rule of Law: Its Nature and General Applications
• Chapter V: The Right to Personal Freedom
• Chapter VI: The Right to Freedom of Discussion
• Chapter VII: The Right of Public Meeting 1
• Chapter VIII: Martial Law
• Chapter IX: The Army 1
• Chapter X: The Revenue 1
• Chapter XI: The Responsibility of Ministers
• Chapter XII: Rule of Law Compared With Droit Administratif 1
• Chapter XIII: Relation Between Parliamentary Sovereignty and the Rule of Law
• Part III: The Connection Between the Law of the Constitution and the Conventions of the Constitution
• Chapter XIV: Nature of Conventions of Constitution
• Chapter XV: The Sanction By Which the Conventions of the Constitution Are Enforced
• Appendix
• Note I: Rigidity of French Constitutions
• Note II: Division of Powers In Federal States
• Note III: Distinction Between a Paruamentary Executive and a Non-parliamentary Executive
• Note IV: The Right of Self-defence
• Note V: Questions Connected With the Right of Public Meeting
• Note VI: Duty of Soldiers Called Upon to Disperse an Unlawful Assembly
• Note VII: The Meaning of an “unconstitutional” Law
• Note VIII: Swiss Federalism 89
• Note IX: Australian Federalism 101
• Note X: Martial Law In England During Time of War Or Insurrection 121
• Note XI: Constitution of the Tribunal Des Conflits 159
• Note XII: Proceedings Against the Crown
• Note XIII: Parliament Act, 1911 [i & 2 Geo. 5. Ch. Ch. 13.]

Note IV

THE RIGHT OF SELF-DEFENCE

How far has an individual a right to defend his person, liberty, or property, against unlawful violence by force, or (if we use the word “self-defence” in a wider sense than that usually assigned to it) what are the principles which, under English law, govern the right of self-defence?32

The answer to this inquiry is confessedly obscure and indefinite, and does not admit of being given with dogmatic certainty; nor need this uncertainty excite surprise, for the rule which fixes the limit to the right of self-help must, from the nature of things, be a compromise between the necessity, on the one hand, of allowing every citizen to maintain his rights against wrongdoers, and the necessity, on the other hand, of suppressing private warfare. Discourage self-help, and loyal subjects become the slaves of ruffians. Over-stimulate self-assertion, and for the arbitrament of the Courts you substitute the decision of the sword or the revolver.

Let it further be remarked that the right of natural self-defence, even when it is recognised by the law, “does not imply a right of attacking, for instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice.”33

A notion is current,34 for which some justification may be found in the loose dicta of lawyers, or the vague language of legal text-books, that a man may lawfully use any amount of force which is necessary, and not more than necessary, for the protection of his legal rights. This notion, however popular, is erroneous. If pushed to its fair consequences, it would at times justify the shooting of trespassers, and would make it legal for a schoolboy, say of nine years old, to stab a hulking bully of eighteen who attempted to pull the child's ears. Some seventy years ago or more a worthy Captain Moir carried this doctrine out in practice to its extreme logical results. His grounds were infested by trespassers. He gave notice that he should fire at any wrongdoer who persisted in the offence. He executed his threat, and, after fair warning, shot a trespasser in the arm. The wounded lad was carefully nursed at the captain's expense. He unexpectedly died of the wound. The captain was put on his trial for murder; he was convicted by the jury, sentenced by the judge, and, on the following Monday, hanged by the hangman. He was, it would seem, a well-meaning man, imbued with too rigid an idea of authority. He perished from ignorance of law. His fate is a warning to theorists who incline to the legal heresy that every right may lawfully be defended by the force necessary for its assertion.

The maintainable theories as to the legitimate use of force necessary for the protection or assertion of a man's rights, or in other words the possible answers to our inquiry, are, it will be found, two, and two only.

FIRST THEORY

In defence of a man's liberty, person, or property, he may lawfully use any amount of force which is both “necessary”—i.e. not more than enough to attain its object—and “reasonable” or “proportionate” —-i.e. which does not inflict upon the wrongdoer mischief out of proportion to the injury or mischief which the force used is intended to prevent; and no man may use in defending his rights an amount of force which is either unnecessary or unreasonable.

This doctrine of the “legitimacy of necessary and reasonable force” is adopted by the Criminal Code Bill Commissioners. It had better be given in their own words:

We take [they write] one great principle of the common law to be, that though it sanctions the defence of a man's person, liberty, and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent. This last principle will explain and justify many of our suggestions. It does not seem to have been universally admitted; and we have therefore thought it advisable to give our reasons for thinking that it not only ought to be recognised as the law in future, but that it is the law at present.35

The use of the word “necessary” is, it should be noted, somewhat peculiar, since it indudes the idea both of necessity and of reasonableness. When this is taken into account, the Commissioners' view is, it is submitted, as already stated, that a man may lawfully use in defence of his rights such an amount of force as is needful for their protection and as does not inflict, or run the risk of inflicting, damage out of all proportion to the injury to be averted, or (if we look at the same thing from the other side) to the value of the right to be protected. This doctrine is eminently rational. It comes to us recommended by the high authority of four most distinguished judges. It certainly represents the principle towards which the law of England tends to approximate. But there is at least some ground for the suggestion that a second and simpler view more accurately represents the result of our authorities.

SECOND THEORY

A man, in repelling an unlawful attack upon his person or liberty, is justified in using against his assailant so much force, even amounting to the infection of death, as is necessary for repelling the attack— i.e, as is needed for self-defence; but the infliction upon a wrongdoer of grievous bodily harm, or death, is justified, speaking generally, only by the necessities of self-defence—i.e. the defence of life, limb, or permanent liberty.36

This theory may be designated as the doctrine of “the legitimacy of force necessary for self-defence.” Its essence is that the right to inflict grievous bodily harm or death upon a wrongdoer originates in, and is limited by, the right of every loyal subject to use the means necessary for averting serious danger to life or limb, and serious interference with his personal liberty.

The doctrine of the 'legitimacy of necessary and reasonable force” and the doctrine of the “legitimacy of force necessary for self-defence” conduct in the main, and in most instances, to the same practical results.

On either theory A, when assaulted by X, and placed in peril of his life, may, if he cannot otherwise repel or avoid the assault, strike X dead. On the one view, the force used by A is both necessary and reasonable; on the other view, the force used by A is employed strictly in self-defence. According to either doctrine A is not justified in shooting at X because X is wilfully trespassing on A's land. For the damage inflicted by A upon X—namely, the risk to X of losing his life—is unreasonable, that is, out of all proportion to the injury done to A by the trespass, and A in firing at a trespasser is clearly using force, not for the purpose of self-defence, but for the purpose of defending his property. Both theories, again, are consistent with the elaborate and admitted rules which limit a person's right to wound or slay another even in defence of life or limb.37 The gist of these rules is that no man must slay or severly injure another until he has done everything he possibly can to avoid the use of extreme force. A is struck by a ruffian, X; A has a revolver in his pocket. He must not then and there fire upon X, but, to avoid crime, must first retreat as far as he can. X pursues; A is driven up against a wall. Then, and not till then, A, if he has no other means of repelling attack, may justifiably fire at X. Grant that, as has been suggested, the minute provisos as to the circumstances under which a man assaulted by a ruffian may turn upon his assailant, belong to a past state of society, and are more or less obsolete, the principle on which they rest is, nevertheless, clear and most important. It is, that a person attacked, even by a wrongdoer, may not in self-defence use force which is not “necessary,” and that violence is not necessary when the person attacked can avoid the need for it by retreat; or, in other words, by the temporary surrender of his legal right to stand in a particular place—e.g. in a particular part of a public square, where he has a lawful right to stand.38 Both theories, in short, have reference to the use of “necessary” force, and neither countenances the use of any force which is more than is necessary for its purpose. A is assaulted by X, he can on neither theory justify the slaying or wounding of X, if A can provide for his own safety simply by locking a door on X. Both theories equally well explain how it is that as the intensity of an unlawful assault increases, so the amount of force legitimately to be used in self-defence increases also, and how defence of the lawful possession of property, and especially of a man's house, may easily turn into the lawful defence of a man's person. “A justification of a battery in defence of possession, though it arose in defence of possession, yet in the end it is the defence of the person.39 This sentence contains the gist of the whole matter, but must be read in the light of the caution insisted upon by Blackstone, that the right of self-protection cannot be used as a justification for attack.40

Whether the two doctrines may not under conceivable circumstances lead to different results, is an inquiry of great interest, but in the cases which generally come before the Courts, of no great importance. What usually requires determination is how far a man may lawfully use all the force necessary to repel an assault, and for this purpose it matters little whether the test of legitimate force be its “reasonableness” or its “self-defensive character.” If, however, it be necessary to choose between the two theories, the safest course for an English lawyer is to assume that the use of force which inflicts or may inflict grievous bodily harm or death—of what, in short, may be called “extreme” force—is justifiable only for the purpose of strict self-defence.

This view of the right of self-defence, it may be objected, restricts too narrowly a citizen's power to protect himself against wrong.

The weight of this objection is diminished by two reflections.

For the advancement of public justice, in the first place, every man is legally justified in using, and indeed is often bound to use, force, which may under some circumstances amount to the infliction of death.

Hence a loyal citizen may lawfully interfere to put an end to a breach of the peace, which takes place in his presence, and use such force as is reasonably necessary for the purpose.41 Hence, too, any private person who is present when any felony is committed, is bound by law to arrest the felon, on pain of fine and imprisonment if he negligently permit him to escape.42

Where a felony is committed and the felon flyeth from justice, or a dangerous wound is given, it is the duty of every man to use his best endeavours for preventing an escape. And if in the pursuit the party flying is killed, where he cannot otherwise be overtaken, this will be deemed justifiable homicide. For the pursuit was not barely warrantable; it is what the law requireth, and will punish the wilful neglect of.43

No doubt the use of such extreme force is justifiable only in the case of felony, or for the hindrance of crimes of violence. But

such homicide as is committed for the prevention of any forcible and atrociouscrime., is justifiable.., by the law of England… as it stands at the present day. If any person attempts the robbery or murder of another, or attempts to break open a house in the night-time, and shall be killed in such attempt, either by the party assaulted, or the owner of the house, or the servant attendant upon either, or by any other person, and interposing to prevent mischief, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force—as, for example, the picking of pockets; nor to the breaking open of a house in the day-time, unless such entry carries with it an attempt of robbery, arson, murder, or the like.44

Acts therefore which would not be justifiable in protection of a person's own property, may often be justified as the necessary means, either of stopping the commission of a crime, or of arresting a felon. Burglars rob A's house, they are escaping over his garden wall, carrying off A's jewels with them. A is in no peril of his life, but he pursues the gang, calls upon them to surrender, and having no othermeans of preventing their escape, knocks down one of them, X, who dies of the blow; A, it would seem, if Foster's authority may be trusted, not only is innocent of guilt, but has also discharged a public duty.45

Let it be added that where A may lawfully inflict grievous bodily harm upon X—e.g. in arresting him—X acts unlawfully in resisting A, and is responsible for the injury caused to A by X's resistance.46

Every man, in the second place, acts lawfully as long as he merely exercises his legal rights, and he may use such moderate force as in effect is employed simply in the exercise of such rights.

A is walking along a public path on his way home, X tries to stop him; A pushes X aside, X has a fall and is hurt. A has done no wrong; he has stood merely on the defensive and repelled an attempt to interfere with his right to go along a public way. X thereupon draws a sword and attacks A again. It is clear that if A can in no other way protect himself—e.g, by running away from X, or by knocking X down—he may use any amount of force necessary for his self-defence. He may stun X, or fire at X.

Here, however, comes into view the question of real difficulty. How far is A bound to give up the exercise of his rights, in this particular instance the right to walk along a particular path, rather than risk the maiming or the killing of X?

Suppose, for example, that A knows perfectly well that X claims, though without any legal ground, a right to close the particular footpath, and also knows that, if A turns down another road which will also bring him home, though at the cost of a slightly longer walk, he will avoid all danger of an assault by X, or of being driven, in so-called self-defence, to inflict grievous bodily harm upon X.

Of course the case for A's right to use any force necessary for his purpose may be put in this way. A has a right to push X aside. As X's violence grows greater, A has a right to repel it. He may thus turn a scuffle over a right of way into a struggle for the defence of A's life, and so justify the infliction even of death upon X. But this manner of looking at the matter is unsound. Before A is justified in, say, firing at X or stabbing X, he must show distinctly that he comes within one at least of the two principles which justify the use of extreme force against an assailant. But if he can avoid X's violence by going a few yards out of his way, he cannot justify his conduct under either of these principles. The firing at X is not “reasonable,” for the damage inflicted by A upon X in wounding him is out of all proportion to the mischief to A which it is intended to prevent—namely, his being forced to go a few yards out of his way on his road home. The firing at X, again, is not done in strict self-defence, for A could have avoided all danger by turning into another path. A uses force, not for the defence of his life, but for the vindication of his right to walk along a particular pathway. That this is the true view of A's position is pretty clearly shown by the old rules enjoining a person assaulted to retreat as far as he can before he grievously wounds his assailant.

Reg. v. Hewlett a case tried as late as 1858, contains judicial doctrine pointing in the same direction. A was struck by X, A thereupon drew a knife and stabbed X. The judge laid down that “unless the prisoner [A] apprehended robbery or some similar offence, or danger to life, or serious bodily danger (not simply being knocked down), he would not be justified in using the knife in self-defence.47 The essence of this dictum is, that the force used by A was not justifiable, because, though it did ward off danger to A—namely, the peril of being knocked down—it was not necessary for the defence of A's life or limb, or property. The case is a particularly strong one, because X was not a person asserting a supposed right, but a simple wrongdoer.

Let the last case be a little varied. Let X be not a ruffian but a policeman, who, acting under the orders of the Commissioner of Police, tries to prevent A from entering the Park at the Marble Arch. Let it further be supposed that the Commissioner has taken an erroneous view of his authority, and that therefore the attempt to hinder A from going into Hyde Park at the particular entrance does not admit of legal justification. X, under these circumstances, is therefore legally in the wrong, and A may, it would seem,48 push by X. But is there any reason for saying that if A cannot simply push X aside he can lawfully use the force necessary—e.g. by stabbing X—to effect an entrance? There clearly is none. The stabbing of X is neither a reasonable nor a self-defensive employment of force.

A dispute, in short, as to legal rights must be settled by legal tribunals, “for the King and his Courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves”;49 no one is allowed to vindicate the strength of his disputed rights by the force of his arm. Legal controversies are not to be settled by blows. A bishop who in the last century attempted, by means of riot and assault, to make good his claim to remove a deputy registrar, was admonished from the Bench that his view of the law was erroneous, and was saved from the condemnation of the jury only by the rhetoric and the fallacies of Erskine.50

From whatever point therefore the matter be approached, we come round to the same conclusion. The only undoubted justification for the use of extreme force in the assertion of a man's rights is, subject to the exceptions or limitations already mentioned, to be found in, as it is limited by, the necessities of strict self-defence.

[32]Report of Criminal Code Commission, 1879, pp. 43–46 [C. 2345], Notes A and B; Stephen, Criminal Digest (6th ed.), art. 221; 1 East, P. C. 271–294; Foster, Discourse H. ss. 2, 3, pp. 270, 271.

[33]Stephen, Commentaries (8th ed.), iv. pp. 53, 54.

[34]This doctrine is attributed by the Commissioners, who in 1879 reported on the Criminal Code Bill, to Lord St. Leonards. As a matter of criticism it is however open to doubt whether Lord St. Leonards held precisely the dogma ascribed to him. See Criminal Code Bill Commission, Report [C. 2345], p. 44, Note B.

[35]C. C. B. Commission, Report, p. 1.

[36]See Stephen, Commentaries (14th ed.), i. p. 79; iii. p. 267; iv. pp. 42–46. “In the case of justifiable self-defence the injured party may repel force with force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoureth with violence or surprise 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.

“Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force, and even his servant then attendant on him, or any other person present, may interpose for preventing mischief; and if death ensueth, the party so interposing will be justified. In this case nature and social duty co-operate.” —Foster, Discourse II. chap. iii. pp. 273, 274.

[37]See Stephen, Criminal Digest (6th ed.), art. 221, but compare Commentaries (8th ed.), iv. PP. 54–56; and 1 Hale, P. C. 479. The authorities are not precisely in agreement as to the right of A to wound X before he has retreated as far as he can. But the general principle seems pretty clear. The rule as to the necessity for retreat by the person attacked must be always taken in combination with the acknowledged right and duty of every man to stop the commission of a felony, and with the fact that defence of a man's house seems to be looked upon by the law as nearly equivalent to the defence of his person. “If a thief assaults a true man, either abroad or in his house, to rob or kill him, the true man is not bound to give back, but may kill the assailant, and it is not felony.”—1 Hale, P. C. 481. See as to defence of house, 1 East, P. C. 287.

[38]Stephen, Commentaries (14th ed.), iv. pp. 42–46; compare 1 Hale, P. C. 481,482, Stephen, Criminal Digest, art. 222; Foster, Discourse II. cap. iii. compare It should be noted P.C. the rule enjoining that a man shall retreat from an assailant before he uses force applies, it would appear, only to the use of such force as may inflict force grievous bodily harm or death.

[39]Rolle's Ab. Trespass, g. 8.

[40]Blacks. Comm. iv. pp. 183, 184.

[41]See Timothy v. Simpson, 1C. M. & R. 757.

[42]Stephen, Commentaries (14th ed.), iv. p. 309; Hawkins, P. C. book ii. cap. 12.

[43]Foster, Discourse H. of Homidde, pp. 271, 272, and compare pp. 273, 274.

“The intentional infliction of death is not a crime when it is done by any person… in order to arrest a traitor, felon, or pirate, or keep in lawful custody a traitor, felon, or pirate, who has escaped, or is about to escape from such custody, although such traitor, felon, or pirate, offers no violence to any person.”—Stephen, Digest (6th ed.), art. 222.

[44]Stephen, Commentaries (8th ed.), iv. pp. 49, 50, and compare 14th ed. p. 40.

[45]A story told of the eminent man and very learned judge, Mr. Justice Willes, and related by an ear-witness, is to the following effect:—Mr. Justice Willes was asked: qf I look into my drawing-room, and see a burglar packing up the cock, and he cannot see me, what ought I to do?” Willes replied, as nearly as may be” “My advice to you, which I give as a man, as a lawyer, and as an English judge, is as follows: In the supposed circumstance this is what you have a right to do, and I am by no means sure that it is not your duty to do it. Take a double-barrelled gun, carefully load both barrels, and then, without attracting the burglar's attention, aim steadily at his heart and shoot him dead.” See Saturday Review, Nov. 11, 1893, p. 534

[46]Foster, Discourse II. p. 272.

[47]Foster & Finlason, 91, per Crowder J.

[48]It is of course assumed in this imaginary case that Acts of Parliament are not in force empowering the Commissioner of Police to regulate the use of the right to enter into the Park. It is not my intention to discuss the effect of the Metropolitan Police Acts, or to intimate any opinion as to the powers of the Commissioner of Police.

[49]Stephen, Commentaries (14th ed.), iv. p. 44.

[50]The Bishop of Bangor's Case, 26 St. Tr. 463.