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Subject Area: Law
Topic: The American Revolution and Constitution

§ 10.: Security to life.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 10.

Security to life.—

The legal guaranty of the protection of life is the highest possession of man. It constitutes the condition precedent to the enjoyment of all other rights. A man’s life includes all that is certain and real in human experience, and since its extinction means the deprivation of all temporal rights, the loss of his own personality, so far as this world is concerned, the cause or motive for its destruction must be very urgent, and of the highest consideration, in order to constitute a sufficient justification. If there be any valid ground of justification in the taking of human life, it can only rest upon its necessity as a means of protection to the community against the perpetration of dangerous and terrible crimes by the person whose life is to be forfeited. When a person commits a crime, that is, trespasses upon the rights of his fellow-men, he subjects his own rights to the possibility of forfeiture, including even the forfeiture of life itself; and the only consideration, independently of constitutional limitations, being, whether the given forfeiture, by exerting a deterrent influence, will furnish the necessary protection against future infringements of the same rights. That is, of course, only a question of expedience addressed to the wise discretion of legislators, and does not concern the courts. Except as a punishment for crime, no man’s life can be destroyed, not even with his consent. Suicide, itself, is held to be a crime, and one who assists another in the commission of suicide is himself guilty of a crime.1 This rule of the common law is in apparent contradiction with the maxim of the common law, which in every other case finds ready acquiescence, viz.: an injury (i. e. a legal wrong) is never committed against one who voluntarily accepts it, volenti non fit injuria. If a crime be in every case a trespass upon the rights of others2 suicide is not a crime, and it would not be a crime to assist one “to shuffle off this mortal coil.” But the dread of the uncertainties of the life beyond the grave so generally “makes us rather bear those ills we have, than fly to others that we know not of,” that we instinctively consider suicide to be the act of a deranged mind; and on the hypothesis that no sane man ever commits suicide the State may very properly interfere to prevent self-destruction, and to punish those who have given aid to the unfortunate man in his attack upon himself, or who have with his consent, or by his direction, killed a human being. But if we hold suicide to be in any case the act of a sane man, I cannot see on what legal grounds he can be prevented from taking his own life. It would be absurd to speak of a man being under a legal obligation to society to live as long as possible. The immorality of the act does not make it a crime,3 and since it is not a trespass upon the rights of any one, it is not an act that the State can prohibit. But even if suicide be declared a crime, the act has carried the criminal beyond the jurisdiction of the criminal courts, and consequently no punishment could be inflicted on him. The common law in providing that the body of a suicide should be buried at the cross-roads with a stake driven through it, and that his property shall be forfeited to the crown, violated the fundamental principle of constitutional law that no man can be condemned and punished for an offense, except after a fair trial by a court of competent jurisdiction, in which the accused is given an opportunity to be heard in his own defense. It is somewhat different where one man kills another at the latter’s request. If it be held that the man who makes the request is sane, the killing is no more a crime than if it was done by the unfortunate man himself. But in consideration of the difficulty in proving the request, and the frequent opportunities for felonious murders the allowance of such deeds would afford, the State can very properly prohibit the killing of one man by another at the former’s request. These considerations would justify this exercise of police power, and in only one case is it supposed that any fair reason may be given for allowing it, and that is, where one is suffering from an incurable and painful disease. If the painful sufferer, with no prospect of a recovery or even temporary relief from physical agony, instead of praying to God for a deliverance, should determine to secure his own release, and to request the aid of a physician in the act, the justification of the act on legal grounds may not be so difficult. But even in such a case public, if not religious, considerations would justify a prohibition of the homicide.

[1]4 Bl. Com. 188, 189.

[2]See post, § 60.

[3]See post, § 60.